Berwind Natural Resources, Corp., Kentucky Berwind Land Company, Kyber Coal Company, and Jesse Branch Coal Company

Plain-English summary

Berwind Natural Resources, Kentucky Berwind Land Company, Kyber Coal Company, and Jesse Branch Coal Company contested Mine Act proceedings involving the Elmo No. 5 Mine. After an earlier summary-decision order narrowed the issues for hearing, the contestants asked the judge to exclude testimony and evidence that they believed went beyond those remaining issues. Judge David F. Barbour denied the motion in limine outside the hearing, but stated that the hearing would be limited to evidence about the companies’ control or supervision of day-to-day mining operations. The order did not decide the underlying violations.

Decision snapshot

• Governing proceeding: Consolidated contest proceedings involving KENT 94-574-R through KENT 94-797-R and KENT 94-862-R
• Outcome: The motion in limine was denied, with the judge stating that the hearing would address only the specified remaining factual issues.
• Key point: When a summary-decision order identifies the disputed facts requiring resolution, the hearing is limited to those issues rather than reopening every pleaded issue.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGE
2 SKYLINE, 10TH FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

                        June 12, 1995

BERWIND NATURAL RESOURCES, CORP., : CONTEST PROCEEDINGS
KENTUCKY BERWIND LAND COMPANY, :
KYBER COAL COMPANY, : Docket No. KENT 94-574-R
JESSE BRANCH COAL COMPANY, : through KENT 94-797-R
Contestants, :
v. : and
:
SECRETARY OF LABOR : KENT 94-862-R
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : AA & W Coals, Inc.
Respondent : Elmo No. 5 Mine
:
: Mine I.D. No. 15-16856

             ORDER DENYING MOTION IN LIMINE

 On April 24, 1995, I issued an Order and Notice of Hearing

in these cases. In the order, I denied the Secretary's motion
for summary decision with respect to all of the Contestants
(17 FMSHRC 684 (April 1995)).

 I granted the Contestants' motion for summary decision with

regard to two of the Contestants: Berwind Natural Resources
Corp. (Berwind) and Jesse Branch Coal Company (Jesse Branch).
I stated:

      [T]he undisputed material facts establish that
      Jesse Branch and Berwind did not substantially
      participate in the control or supervision of the
      day-to-day operations of the mine or have the
      authority to do so (17 FMSHRC at 717).

 I also denied the Contestants' motion with regard to

Kentucky Berwind Land Company (Kentucky Berwind) and Kyber Coal
Company (Kyber). I stated:

      I cannot find the undisputed material facts
      establish that Kyber and Kentucky Berwind
      substantially participated in the control or
      supervision of the day-to-day operations of the
      mine or had the authority to do so. Nor can I
      find such facts establish they did not so
      participate. Additional evidence is needed
      about the mining projections and the

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      relationships between AA&W, Kyber and Kentucky
      Berwind as they relate to the projections and to
      the day-to-day operations at the mine.
      Additional information also is needed regarding
      the interpretation and implementation of the
      provisions in the Kyber-AA&W contract that
      relate to production (17 FMSHRC 716-717).

 In order to afford the parties the opportunity to augment

the record with the necessary additional evidence, I noticed the
cases for hearing and stated, "at the hearing the parties should
be prepared to offer evidence regarding the particular issues
specified above," i.e., the issues stated regarding Kyber and
Kentucky Berwind (17 FMSHRC at 717).

 In response to the notice of hearing, the parties, as

directed, have exchanged lists of exhibits, witnesses and
synopses of testimony. As a result, counsel for the Contestants
has moved in limine for an order precluding the Secretary from
offering certain testimony and evidence at the hearing.
Counsel states that the parties' prehearing preparations reveal
the Secretary's intent to present evidence beyond the scope of
the issues that remain in the cases.

 Counsel for the Secretary opposes the motion stating, in

effect, that all issues are open for litigation ("The denial of
summary decision only signifies that there are facts in dispute.
As a result, all issues raised in the motions are open to
litigation" (Response to Motion in Limine 4).). As set forth
more fully below, I do not agree with counsel for the Secretary,
although I decline to grant the Contestants' motion outside a
hearing and without proffers, where necessary, from counsel for
the Secretary.

 Generally, when a case is not fully adjudicated upon a

motion for summary decision, the judge may ascertain what
material facts are controverted or are yet to be ascertained and
may enter an order accordingly. Upon trial of the action, the
facts shall be deemed established and the decision rendered
(See Fed. R. Civ. P. 56(d)). If the judge denies the motion and
does not specify those facts that are not controverted or at
issue, all of the issues, as framed in the pleadings, are open
for trial. However, when the judge specifies the facts needing
resolution, trial is only necessary on those issues required for
a decision (See Moore's Federal Practice, & 56.20 [2](1995)).
In such instances, contrary to the Secretary's contention, all
issues are not open for litigation.

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 In my view, the order and notice of hearing of April 24 1995,

contemplated that to resolve the remaining issues the hearing
should be limited to evidence regarding whether Kyber used mining
projections substantially to control day-to-day mining at the
Elmo No. 5 Mine (17 FMSHRC at 707), whether Kyber exercised
control over the day-to-day operations of the mine through the
Kyber-AA&W contract provisions relating to production (17 FMSHRC
at 709) and whether Kentucky Berwind used its involvement with
mining projections substantially to control the day-to-day mining
at the Elmo No. 5 Mine (17 FMSHRC at 714). On May 1, 1995, I
stated this view in a letter to Stephen D. Turow, counsel for the
Secretary.

 Counsel for the Contestants requests that I exclude proposed

expert or factual testimony on 13 issues in the Secretary's
May 26, 1995 letter to Timothy M. Biddle, counsel for the
Contestants. I decline to do so in the abstract and outside the
context of the hearing. However, while the ruling sought by the
Contestants is DENIED, the Secretary is on notice that I intend
to conduct the hearing consistent with my view of the issues
remaining to be resolved.

                                David F. Barbour
                                Administrative Law Judge

Distribution:

Robert I. Cusick, Esq., Marco M. Rajkovich, Esq.,
Christopher Van Beyer, Esq., Mindy G. Barfield, Esq.,
Wyatt, Tarrant & Combs, 1700 Lexington Financial Center,
Lexington, KY 40507 (via facsimile and certified mail)

Timothy M. Biddle, Esq., Thomas M. Means, Esq., Edward M. Green,
Esq., Crowell & Moring, 1001 Pennsylvania Avenue, N.W.,
Washington, D.C., 20004-2595 (via facsimile and certified mail)

Stephen D. Turrow, Esq., Office of the Solicitor, U.S. Dept. of
Labor, 4015 Wilson Boulevard, Suite 400, Arlington, VA 22203
(via facsimile and certified mail)

\mca

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