               IN THE UNITED STATES DISTRICT COURT
           FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
                           AT BLUEFIELD

INTERNATIONAL UNION, UNITED
MINE WORKERS OF AMERICA, et al.,

     Plaintiffs,

v.                                 CIVIL ACTION NO. 1:16-cv-12506

CONSOL ENERGY, INC., et al.,

     Defendants.

                   MEMORANDUM OPINION AND ORDER

     Pending before the court are defendant CONSOL Energy,

Inc.’s motion to dismiss the Second Amended Complaint, (ECF No.

79); defendants Amonate Facility, LLC, Helvetia Coal Company,

Island Creek Coal Company, and Laurel Run Mining Company’s

(collectively “the Subsidiaries”) motion to dismiss the Second

Amended Complaint, (ECF No. 98); and the United Mine Workers of

America and six individual retirees’ (collectively “plaintiffs”)

motion to consolidate cases.   (ECF No. 97.)    Also pending is the

Subsidiaries’ second motion to dismiss Count II of the Second

Amended Complaint and to transfer Count I.     (ECF No. 111.)

     For the following reasons, CONSOL Energy, Inc.’s motion to

dismiss is GRANTED IN PART and DENIED IN PART, the Subsidiaries’

first motion to dismiss is GRANTED IN PART and DENIED IN PART,

the Subsidiaries’ second motion to dismiss Count II is GRANTED,
plaintiffs’ motion to consolidate is GRANTED, and the

Subsidiaries’ motion to transfer Count I is GRANTED.

I.   Factual and Procedural Background

     Defendant CONSOL Energy, Inc. (“CONSOL”) is a publicly

owned energy company engaged in the operation of mines and

facilities related to the production of coal, which it sells

worldwide to electricity generators and steelmakers.    CONSOL

maintains its corporate headquarters near Pittsburgh,

Pennsylvania.   Plaintiff International Union, United Mine

Workers of America (“UMWA”) is a labor organization that

represents coal miners.   The UMWA maintains its principal place

of business in Triangle, Virginia, and has offices within the

Southern District of West Virginia (“SDWVa”) at Beckley,

Charleston, and Chapmanville.   The six individual retirees

(“Retiree-Plaintiffs”) are residents of the SDWVa, and are

retired coal miners and participants in and beneficiaries of the

group health insurance plan at issue in this case.

     The UMWA periodically negotiates labor agreements, called

National Bituminous Coal Wage Agreements (“NBCWA”), with the

Bituminous Coal Operators' Association (“BCOA”), a multi-

employer bargaining group which acts on behalf of member

employers.   In 2011, the BCOA and the UMWA agreed to a new

NBCWA, which governed the terms and conditions of employment of

                                 2
UMWA-represented miners employed by CONSOL and its subsidiaries.

(ECF No. 78, ¶ 17.)    CONSOL’s CEO Nicholas J. DeIuliis led the

BCOA Negotiating Committee in 2011, and he personally signed for

the BCOA in portions of the 2011 NBCWA.       (Id. ¶ 23.)

     The Subsidiaries in this action were among the signatory

companies to the 2011 NBCWA.    (Id. ¶ 22.)     The Subsidiaries were

also signatories to the Employer Plan, an employee welfare

benefit plan governed by ERISA, 1 and CONSOL acted as Plan

Administrator of the Employer Plan.       Each signatory to the 2011

NBCWA is required to establish an Employer Plan, which is then

incorporated into the 2011 NBCWA.       (Id. ¶ 17.)

     On October 31, 2016, the Subsidiaries informed the UMWA of

their intent to terminate the 2011 NBCWA when it expired on

December 31, 2016.    (Id. ¶ 31.)   The Subsidiaries met with the

UMWA on multiple occasions in 2016 to negotiate changes to the

Employer Plan to be implemented following the 2011 NBCWA’s

expiration.   (Id. ¶¶ 28-33.)   CONSOL also sent five pieces of

correspondence directly to retirees relating to these proposed

changes:   one dated March 15, 2016; one dated May 6, 2016; two

dated January 3, 2017; and one dated January 12, 2017

(collectively “Retiree Letters”).       (See id. ¶¶ 26, 39-41.)   In


1 The Employee Retirement Income Security Act of 1974 (“ERISA”),
29 U.S.C. § 1001 et seq.

                                    3
those communications, CONSOL stated that it planned to exit the

coal industry and intended to terminate the defined health

benefits provided through group insurance under the Plan. 2     (Id.)

         A. Initiation of the ROD Arbitration

     The UMWA rejected certain proposed changes to the Employer

Plan, which led the UMWA to invoke the resolution of dispute

(“ROD”) mechanism of the Employer Plan on November 10, 2016.

The 2011 NBCWA contained a dispute resolution provision

specifying that the Trustees of the UMWA Health and Retirement

Funds (“Trustees”) will resolve any disputes as to application

of the Employer Plan provisions under the 2011 NBCWA.       (ECF No.

8, Ex. 8 at p.76.)    The ROD form, No. 11-0143, was filed by a

UMWA official and named one individual miner receiving benefits

under the Employer Plan.     However, the UMWA indicated in that

form that the dispute covered all beneficiaries of the Employer

Plan.    The ROD filing 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.”    (Id., Ex. 21.)   On December 22, 2016, the UMWA



2 CONSOL purported in one communication to beneficiaries, sent
January 12, 2017, to have modified the terms of the Employer
Plan to eliminate the Resolution of Dispute arbitration
mechanism and require any all disputes to be brought in the
Western District of Pennsylvania. (ECF No. 8, Ex. 32.)

                                   4
transmitted a letter to CONSOL asking that it take no further

action pending a decision by the Trustees on the ROD filing.

(Id., Ex. 28.)

         B. Procedural Beginnings of the Instant Suit

       On December 23, 2016, the UMWA and the Retiree-Plaintiffs

together filed a Complaint in this court against CONSOL, seeking

a preliminary injunction in aid of labor arbitration.       (ECF No.

1.)    CONSOL filed a motion to dismiss the Complaint on January

20, 2017, claiming that this court lacked subject matter

jurisdiction because it was the Subsidiaries, and not CONSOL,

who were parties to the 2011 NBCWA and the Employer Plan at

issue.    (ECF No. 13.)   CONSOL made no arguments regarding

personal jurisdiction in this motion to dismiss.     (See ECF No.

14.)

       On January 24, 2017, plaintiffs amended the Complaint to

join the Subsidiaries as co-defendants.     (ECF No. 16.)   This

First Amended Complaint did not allege a violation of ERISA nor

did it seek to compel any defendant to arbitrate under the LMRA. 3

Rather, like the initial Complaint, it sought injunctive relief

preventing “(1) any unilateral action by Defendants to terminate

and/or replace the Employer Plan; and (2) any further


3 The Labor Management Relations Act of 1947 (“LMRA”), 29 U.S.C.
§ 185.

                                   5
communication from Defendants to participants and beneficiaries

of the Employer Plan informing them of any changes to the

Employer Plan,” until the Trustees had issued a final and

binding decision on the ROD filing.    (ECF No. 16, at 21.)

     After briefing and a hearing, this court issued an

interlocutory order and memorandum opinion on the merits of

plaintiffs’ First Amendment Complaint on March 17, 2017.      Int’l

Union, UMWA v. Consol Energy, Inc., 243 F. Supp. 3d 755 (S.D.W.

Va. 2017), appeal mooted, No. 17-1378 (4th Cir. Nov. 27, 2017).

The court concluded the ROD grievance was arbitrable by the

Trustees and granted a preliminary injunction against CONSOL

(and its agents and assigns), but dismissed the Subsidiaries for

lack of personal jurisdiction.    See id.

       C. The ROD Decision and the Second Amended Complaint

     On October 31, 2017, the Trustees issued their decision in

favor of the UMWA, concluding that CONSOL is not permitted to

make modifications or changes to the retiree health benefit plan

unilaterally, and that the proposed changes described will not

provide the level of health benefits as mandated in the 2011

NBCWA or Employer Plan.   (See ECF No. 78-1.)

     That same day, plaintiffs moved for leave to amend their

complaint to rejoin the Subsidiaries as co-defendants, and to

add two new causes of action:    1) a LMRA claim to confirm ROD

                                  6
No. 11-0143 under LMRA § 301; and 2) an ERISA claim seeking a

declaration by this court that defendants may not change the

Employer Plan benefits without agreement from the UMWA.       (ECF

No. 67.)   This court granted plaintiffs’ motion to amend the

complaint on May 21, 2018, see Int'l Union, UMWA v. CONSOL

Energy, Inc., 2018 WL 2328028 (S.D.W. Va. May 21, 2018), and

plaintiffs filed the Second Amended Complaint (“SAC”) on May 23,

2018.   (ECF No. 78.)

        D. The First WDPa Suit

     On January 2, 2017, the Subsidiaries commenced an action in

the Western District of Pennsylvania (“WDPa”).       See Helvetia

Coal Co. v. UMWA, No. 17-00002 (W.D. Pa. filed Jan. 2, 2017)

(hereinafter “First WDPa Suit”).       The Subsidiaries sought:   (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 the proposed changes do not breach the

requirements of the Employer Plan.       See id., at ECF No. 1.




                                   7
Basing its decision on the first-to-file rule, 4 the WDPa court

ordered that this First WDPa Suit be transferred to this court.

Helvetia Coal Co. et al v. UMWA, 2017 WL 3669415 at *4 (W.D. Pa.

Aug. 23, 2017).   After the First WDPa Suit was transferred and

docketed in this court as No. 1:17-cv-03876, the Subsidiaries

voluntarily dismissed the action.    See First WDPa Suit, No.

1:17-cv-03876 (S.D.W. Va. filed Jan. 2, 2017), ECF No. 42.

       E. The Second WDPa Suit

     On October 31, 2017 – the same day as the Trustees’ ROD

decision – the Subsidiaries filed a second action in the WDPa.

See Helvetia Coal Co. v. UMWA, No. 17-01417 (W.D. Pa. filed Oct.

31, 2017) (hereinafter “Second WDPa Suit”).    The Subsidiaries

requested that the court:   “(1) vacate the October 31, 2017

decision in ROD No. 11-0143; (2) declare that the negotiated

exhaustion of remedies requirement and Resolution of Disputes

process provided in the relevant section of the expired 2011

NBCWA, and 2011 employee benefit plan, is inapplicable to post-

termination retiree health benefit disputes; (3) declare that

[the Subsidiaries] do not breach the expired 2011 NBCWA by

changing the mechanism for providing healthcare benefits for



4 Plaintiffs filed the instant case in this court on December 23,
2016, prior to the Subsidiaries’ January 2, 2017 filing of their
action in the WDPa.

                                 8
their Medicare-eligible retirees and dependents from an

employer-sponsored group insurance to individually directed

Health Reimbursement Accounts; and (4) declare that negotiations

between the Union and [the Subsidiaries] concerning post-

termination changes to the Plan are subject to the NLRA, and its

impasse doctrine.”   Helvetia Coal Co. v. UMWA, 2018 WL 3122378,

at *2 (W.D. Pa. June 26, 2018).

     The WDPa district court again found that the first-filed

rule dictated the action be transferred to the SDWVa, and

transferred this second action to this court on June 26, 2018.

Id. at *6.   The case was docketed in this district as 1:18-cv-

01095, and is currently pending before this court.     See Second

WDPa Suit, No. 1:18-cv-01095 (S.D.W. Va. filed Oct. 31, 2017).

     On February 28, 2020, the Subsidiaries filed a motion to

transfer back to the WDPa.   Id., ECF No. 46.    The Subsidiaries

note that their motion to transfer is pled in the alternative to

the motions filed in the instant case, and they do not waive

their motions and jurisdictional challenges made in this action.

See id., ECF Nos. 47, 52.

       F. The Instant Motions at Issue

             i. Defendants’ motions to dismiss

     CONSOL filed its motion to dismiss the SAC on May 23, 2018.

(ECF No. 79.)   In its motion, CONSOL makes several arguments as

                                  9
to why both Count I (the LMRA § 301 claim seeking to enforce the

Trustees’ ROD decision) and Count II (the ERISA § 502(a)(3)

claim seeking declaratory relief) must be dismissed.     (ECF No.

80.)    Plaintiffs responded on June 18, 2018, (ECF No. 86), and

CONSOL filed its reply on June 25, 2018.     (ECF No. 90.)

       The Subsidiaries filed their first motion to dismiss the

SAC on July 13, 2018.    (ECF No. 99.)   Plaintiffs responded on

July 25, 2018, (ECF No. 101), and the Subsidiaries filed their

reply on August 1, 2018.    (ECF No. 102.)   Several of the

arguments made in the Subsidiaries’ motion and responses raise

identical issues as CONSOL’s motion to dismiss. 5    Additionally,

some of the arguments by both the Subsidiaries and plaintiffs

are repeated in the briefing of the Subsidiaries’ second motion

to dismiss, 6 filed on February 28, 2020.    (ECF No. 112.)   Where



5 These issues include the Retiree-Plaintiffs lack of standing
for the LMRA claim; the UMWA’s lack of standing to prosecute the
ERISA claim; improper venue for both claims; the Retiree-
Plaintiffs failure to exhaust administrative remedies; and the
failure to state a valid claim under ERISA § 502(a)(3).

     The court also notes that all plaintiffs are represented by
the same counsel, and all defendants are represented by the same
counsel. Thus, it is no surprise that many of the arguments
made are very similar.

6 Plaintiffs filed their response to the Subsidiaries’ second
motion to dismiss on April 3, 2020, (ECF No. 115), and the
Subsidiaries filed their reply on April 20, 2020. (ECF No.
118.)

                                 10
the court later summarizes the parties’ arguments made in the

various motions, the court has taken note of arguments made by

both CONSOL and the Subsidiaries on the shared issues and lines

of argument, and may merge the arguments as being made by

“defendants” where applicable.      This allows the court to discuss

the issues raised while avoiding repetition in its summaries.

            ii. Plaintiffs’ motion to consolidate

     On July 10, 2018, plaintiffs filed a motion to consolidate

this case with the Second WDPa Suit after it was transferred to

this court.    (ECF No. 97.)    Defendants jointly filed a motion

opposing consolidation on July 24, 2018.      (ECF No. 100.)

            iii. Subsidiaries’ motion to transfer

     In their second motion to dismiss, the Subsidiaries also

moved that this court transfer this case to either the WDPa or

the District of Columbia.      (See ECF No. 112.)   Plaintiffs filed

their response to this motion on April 3, 2020, (ECF No. 115),

and the Subsidiaries filed their reply on April 20, 2020.      (ECF

No. 118.)    The Subsidiaries also filed a motion to transfer in

the Second WDPa Suit after it was transferred to this court.

See Second WDPa Suit, No. 1:18-cv-01095 (S.D.W. Va. filed Oct.

31, 2017), ECF No. 46.    The briefing on that motion included

largely identical arguments to those made in the motion to

transfer briefing in this case.

                                   11
II.   Analysis

      This case is complex.    There are two plaintiffs (the UMWA

and the Retiree-Plaintiffs) suing two defendants (CONSOL and the

Subsidiaries) on two causes of action (an LMRA § 301 claim and

an ERISA § 502(a)(3) claim).     Thus, there are essentially eight

total claims made by plaintiffs before the court:     1) an LMRA

claim by the UMWA against CONSOL; 2) an LMRA claim by the UMWA

against the Subsidiaries; 3) an LMRA claim by the Retiree-

Plaintiffs against CONSOL; 4) an LMRA claim by the Retiree-

Plaintiffs against the Subsidiaries; 5) an ERISA claim by the

UMWA against CONSOL; 6) an ERISA claim by the UMWA against the

Subsidiaries; 7) an ERISA claim by the Retiree-Plaintiffs

against CONSOL; and 8) an ERISA claim by the Retiree-Plaintiffs

against the Subsidiaries.     There are also many motions pending

by all parties, and the grounds for the motions involve

procedural, jurisdictional, as well as substantive issues.

Moreover, the court finds that many of the rulings on issues

involving one claim affect the way the court must or should rule

on another claim.

      The court therefore believes the best way to carefully and

clearly address all the outstanding issues in this case is to

address each issue individually, summarizing the parties’




                                  12
positions and arguments made in the extensive briefing and then

discussing the court’s findings and conclusions.

       A. Venue and Personal Jurisdiction Over CONSOL

     CONSOL argues that both Counts I and II must be dismissed

for improper venue and lack of personal jurisdiction.     CONSOL

claims that the appropriate venue lies in the WDPa, and that by

the May 23, 2018 filing of the SAC, its contacts with West

Virginia had become so attenuated that the court lacks personal

jurisdiction over it.   Plaintiffs respond that CONSOL has waived

objections to both venue and personal jurisdiction because

CONSOL did not include those objections in its first responsive

pleading to the original complaint in this matter.     CONSOL

replies that plaintiffs have the burden of establishing that

personal jurisdiction exists and that venue is properly laid

with respect to each new cause of action pled in the SAC, and

that plaintiffs have not met this burden.

     A defendant must assert lack of personal jurisdiction or

improper venue in its first responsive pleading to avoid waiver.

See Fed. R. Civ. P. 12(h)(1)(B).     Although plaintiffs twice

amended their complaint, “[a]n amendment to the pleadings

permits the responding pleader to assert only such of those

[Rule 12] defenses which . . . were not available at the time of

his response to the initial pleading.”     Rowley v. McMillan, 502

                                13
F.2d 1326, 1333 (4th Cir. 1974).      Here, the defenses of personal

jurisdiction and venue were available to CONSOL at the time of

CONSOL’s initial responsive pleasing, yet CONSOL did not raise

these defenses then. 7   (See ECF No. 14.)

     Therefore, because these defenses were waived, venue is

proper in this district to claims against CONSOL, and this court

has personal jurisdiction over CONSOL. 8     CONSOL’s motion to

dismiss the claims against it - claims 1), 3), 5), and 7) as

previously listed - is unsuccessful on these grounds.

       B. Subject Matter Jurisdiction over CONSOL for LMRA Claim

     CONSOL contends that the court lacks subject matter

jurisdiction over it on Count I because it is not an “employer”

under LMRA § 301.   CONSOL also argues that the court cannot

enforce the Trustees’ ROD decision against it because it is

neither a signatory to the 2011 NBCWA nor a party to the


7 CONSOL conclusorily states in a footnote that “the
unavailability exception applies in the instant case,” (ECF No.
90), but gives no argument why it applies. CONSOL elsewhere
states in that same brief that it had closed its West Virginia
office in 2016, prior to the filing of this action. (See id.)
Thus, it seems clear that the defenses of personal jurisdiction
and venue were available to CONSOL at the time it made its first
responsive pleading on January 20, 2017.

8 This court previously found the same, ruling that “Defendant
CONSOL Energy has waived its personal jurisdiction and venue
defenses.” Int’l Union, UMWA v. Consol Energy, Inc., 243 F.
Supp. 3d 755, 760 (S.D.W. Va. 2017).


                                 14
Employer Plan’s agreement to ROD arbitration. 9   Plaintiffs

respond that this court, in its previous opinion granting the

preliminary injunction, has already found that subject matter

jurisdiction exists over CONSOL for purposes of LMRA § 301:

“[a]s far as § 301 of the LMRA is concerned . . . the court may

exercise subject matter jurisdiction.”     Int’l Union, UMWA v.

Consol Energy, Inc., 243 F. Supp. 3d 755, 762 (S.D.W. Va. 2017).

Likewise, plaintiffs also argue this court has previously held

that CONSOL “is signatory to a collective bargaining agreement

at issue in this matter.”    Id.   CONSOL replies that subject

matter jurisdiction does not exist merely because CONSOL is

deemed to be an agent of the Subsidiaries; CONSOL’s acts as

agent may bind the Subsidiaries, but the agent’s acts do not

bind the agent. 10   Additionally, CONSOL argues that no language

in the 2011 NBCWA or the Employer Plan authorizes that a non-

signatory may be bound to these agreements, and such a ruling




9 CONSOL includes an affidavit by Kurt Salvatori, Chief
Administrative officer of CONSOL, to bolster their claims that
CONSOL is not an “employer” and that the court should not
enforce the ROD decision against CONSOL. (See ECF No. 79, Ex.
B.)

10CONSOL also renews its argument that the Subsidiaries are not,
as plaintiffs allege, mere “shell subsidiaries” of CONSOL.


                                   15
binding a non-signatory such as CONSOL would be contrary to

agency principles and arbitration enforcement law.

     Like it has already done once previously when it granted

plaintiffs’ motion to file the SAC, see Int'l Union, UMWA v.

CONSOL Energy, Inc., 2018 WL 2328028, at *4 (S.D.W. Va. May 21,

2018), the court upholds its prior ruling on this issue and

finds that there is subject matter jurisdiction over CONSOL on

the LMRA claim.   The court restates its earlier ruling in

relevant part here:

          Defendant CONSOL Energy is the corporate parent.
     Defendant CONSOL Energy claims that it is “a non
     signatory to the expired 2011 NBCWA,” and as such “has
     never agreed to arbitrate disputes under that
     Agreement.” Doc. No. 42.

          The court finds 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. It was
     Defendant CONSOL Energy, the court already has
     observed, that held meetings throughout this judicial
     district and the State of West Virginia soliciting
     retired miners’ enrollment in its HRA scheme. As
     such, the court concludes that Defendant CONSOL Energy
     is the real party in interest and is subject to the
     court’s power to issue an injunction. . . .

          Despite Defendant CONSOL Energy’s assertions in
     its Motion to Dismiss, see Doc. Nos. 13—14, that this
     court lacks jurisdiction over this case “because
     Defendant [CONSOL Energy] is not (and was never)

                                16
     signatory to a labor agreement with the Plaintiff,”
     CONSOL Energy is signatory to a collective bargaining
     agreement at issue in this matter. This is evidenced
     by CONSOL Energy’s July 1, 2011 agreement to adopt the
     2011 NBCWA Employer Plan, executed by Nicholas
     DeIuliis, who was then a top executive of CONSOL
     Energy. See Doc. No. 8. Defendant CONSOL Energy,
     and not its individual subsidiaries, administers the
     Employer Plan and benefits at issue in this matter.
     Notably, CONSOL Energy, not any of its individual
     subsidiaries, has undertaken the conduct and has, to
     that end, even transmitted the salient correspondence
     (invariably on “CONSOL Energy, Inc.” letterhead). See
     id.

          As far as § 301 of the LMRA is concerned, this
     dispute arises “for violation of contracts between an
     employer and a labor organization representing
     employees in an industry affecting commerce.”
     Accordingly, the court may exercise subject matter
     jurisdiction.

Int’l Union, 243 F. Supp. 3d at 762 (emphasis added).

     The court finds no basis to change its earlier ruling. 11

CONSOL is an “employer” under LMRA § 301, and is effectively a


11The court has reviewed Kurt R. Salvatori’s affidavit, (ECF No.
79-1), and has found in it no grounds to upend its earlier
rulings. While the letters this court earlier reviewed do refer
to “CONSOL” and not simply “CONSOL Energy Inc.”, there is no
evidence that these letters intended to refer to Consolidated
Coal Company and not CONSOL Energy, Inc., and thus no evidence
that the court clearly misinterpreted the letters. As CONSOL
itself points out, “CONSOL” was used as shorthand reference for
Consol Energy Inc. as well as Consolidated Coal, and sometimes
used to refer to them jointly. (See ECF No. 80.) This
underscores that the court was correct to interpret the letters
and CONSOL’s involvement as it did.


                                17
signatory to the Employer Plan and its agreement to ROD

arbitration. 12   Thus, there is subject matter jurisdiction over

CONSOL for plaintiffs’ LMRA enforcement claim.

        C. First-to-File

     Defendants argue that Count I should be dismissed because

it was not first-filed.    Instead, they contend that the Second

WDPa Suit was first-filed.    Plaintiffs respond that this issue

has been addressed by the WDPa, which ruled contrary to the

Subsidiaries’ argument.    Plaintiffs further state that any

first-filed argument is moot following the WDPa’s decision to

transfer the Second WDPa Suit to this court.

     Simply put, defendants are mistaken in arguing that the

Second WDPa Suit was first-filed.      This action was filed on



12Case law further supports this court’s previous ruling. See,
e.g., Vance v. N.L.R.B., 71 F.3d 486, 490 (4th Cir. 1995)
(finding a single employer where interrelation of operations,
common ownership, or centralized control of labor relations are
present); J.J. Ryan & Sons, Inc. v. Rhone Poulenc Textile, S.A.,
863 F.2d 315, 320–21 (4th Cir. 1988) (“When the charges against
a parent company and its subsidiary are based on the same facts
and are inherently inseparable, a court may refer claims against
the parent to arbitration even though the parent is not formally
a party to the arbitration agreement.”); Crest Tankers, Inc. v.
Nat'l Mar. Union of Am., 796 F.2d 234, 237 (8th Cir. 1986) (“an
employer which has not signed a labor contract may be so closely
tied to a signatory employer as to bind them both to the
agreement”); see also U.S. Equal Employment Opportunity Comm'n
v. Consol Energy, Inc., 860 F.3d 131, 141 (4th Cir. 2017)
(“Consol ‘control[led] the subsidiary's employment decisions’
sufficient to make it a[n] employer”).

                                  18
December 23, 2016, while the Second WDPa Suit was filed on

October 31, 2017.    The fact that plaintiffs filed the SAC on May

23, 2018 does not change the fact that this action in this court

was first-filed.    The WDPa court addressed this very issue and

found similarly:    “the ‘first-filed’ court is the West Virginia

Court.”    Helvetia Coal Co. v. United Mine Workers of Am., Int'l

Union, 2018 WL 3122378, at *6 (W.D. Pa. June 26, 2018).

Moreover, this opinion by the WDPa was issued after plaintiffs

filed the SAC, yet this made no difference to that court;

instead, it explained that “[t]he Union Plaintiffs first sought

an injunction in West Virginia in order to allow the arbitration

process to proceed.    Eventually, the arbitration decision was

issued in favor of the Union Plaintiffs and it can be no

surprise to the parties that the Union Plaintiffs seek to [amend

their complaint to] enforce the arbitration decision in the West

Virginia Court.”    Id.

     Therefore, this court finds no grounds to dismiss Count I

on the basis of the first-filed rule.

          D. Service of Process upon the Subsidiaries

     In its first motion to dismiss, the Subsidiaries argue that

plaintiffs’ service of process upon them was improper.    The

Subsidiaries state that they were served process in Pennsylvania

and not in West Virginia, as required by Rule 4 of the Federal

                                  19
Rules of Civil Procedure, and that the LMRA does not provide for

extraterritorial service of process.   Plaintiffs respond that

the extraterritorial service of process was proper because ERISA

§ 502(e)(2) authorizes nationwide service of process.     The

Subsidiaries did not substantively counter this point in their

reply.

     The court finds in favor of the plaintiffs, and rules that

extraterritorial service of process upon the Subsidiaries was

proper due to ERISA’s nationwide service of process provision.

ERISA § 502(e)(2) provides that “process may be served in any

other district where a defendant resides or may be found.”      29

U.S.C. § 1132(e)(2).   The Subsidiaries may be found in

Pennsylvania, and thus service upon them of the entire complaint

in Pennsylvania was proper.

         E. Retiree-Plaintiffs’ Standing to Bring LMRA Claim

     Defendants argue that while the UMWA has standing to bring

the LMRA § 301 claim in Count I, the Retiree-Plaintiffs do not

have standing to bring such a claim.   Plaintiffs respond that

because the UMWA does have standing, an admitted lack of

standing by the Retiree-Plaintiffs has no effect on this court’s

ability to enforce the ROD decision against defendants through

the UMWA’s claim.   Defendants do not appear to contest this

conclusion.

                                 20
     The court finds that the UMWA has standing to bring the

LMRA claim because it is a labor organization party to the 2011

NBCWA.   See Trevathan v. Newport News Shipbuilding & Dry Dock

Co., 944 F.2d 902 (4th Cir. 1991) (“Section 301(a) of the LMRA

authorizes employers and labor organizations, parties to a

collective bargaining agreement, to bring an action in federal

district court to enforce or remedy provisions of the

agreement.”).   However, the individual Retiree-Plaintiffs do not

possess standing under LMRA § 301, as “federal courts have held

that an individual employee cannot appeal an arbitrator's award

under Section 301(a).”   Id.   Therefore, the court hereby

DISMISSES the Retiree-Plaintiffs’ LMRA claims, previously listed

as claims 3) and 4), for lack of statutory standing.

         F. Plaintiffs’ Standing to Bring ERISA Claim

             i. UMWA associational standing

     Defendants assert – inverse to their argument regarding the

LMRA claim in Count I – that while the Retiree-Plaintiffs have

standing to bring the ERISA claim in Count II, the UMWA does not

have standing to bring the ERISA claim.    Plaintiffs counter that

the UMWA possesses associational because the UMWA is seeking to

vindicate the rights of its union members and is not seeking

anything for itself, and because several courts have allowed

unions to sue under ERISA through associational standing.

                                 21
However, defendants reply that the UMWA would fail to meet the

elements of associational standing because the individual

plaintiffs here are not pled to be members of the UMWA but are

retirees, and because many district courts in the Fourth Circuit

have rejected standing by a union to pursue claims under ERISA §

502(a)(3).

     The Supreme Court has established that an association has

standing to bring suit on behalf of its members when:    (a) its

members would otherwise have standing to sue in their own right;

(b) the interests it seeks to protect are germane to the

organization's purpose; and (c) neither the claim asserted nor

the relief requested requires the participation of individual

members in the lawsuit.   Hunt v. Washington State Apple Advert.

Comm'n, 432 U.S. 333, 343 (1977).    But circuits are split on

applying associational standing for ERISA § 502(a)(3) claims

brought by unions.   Compare S. Illinois Carpenters Welfare Fund

v. Carpenters Welfare Fund of Illinois, 326 F.3d 919, 922 (7th

Cir. 2003) (allowing associational standing), with Local 6-0682

Int'l Union of Paper v. Nat'l Indus. Grp. Pension Plan, 342 F.3d

606, 609 n.1 (6th Cir. 2003) (rejecting associational standing)

and New Jersey State AFL-CIO v. New Jersey, 747 F.2d 891, 892

(3rd Cir. 1984) (same).




                                22
     The Fourth Circuit has not directly addressed the issue of

whether a union possesses associational standing for ERISA §

502(a) claims.   However, at least one district court in the

Fourth Circuit has addressed the issue and explicitly rejected

standing by a union to pursue claims under § 502(a) of ERISA.

See United Food & Commercial Workers Local 204 v. Harris-Teeter

Super Markets, Inc., 716 F. Supp. 1551, 1561 (W.D.N.C. 1989)

(“This Court holds that the Union lacks standing as a plaintiff

under [ERISA § 502(a)(3)] because it is neither a participant

nor a beneficiary of the Plan.”).     Though the decision in United

Food is not binding on this court, the court agrees with its

sister district court’s ruling and finds that unions do not

possess associational standing to bring § 502(a)(3) claims.

This conclusion is rooted in the fact that when ERISA explicitly

authorized certain parties to bring § 502(a) claims, it did not

include unions in that list.

     ERISA § 502(a) specifies the types of claims that may

properly be pursued under ERISA, as well as the parties having

standing to assert those claims.     The only parties entitled to

pursue an ERISA claim under § 502(a)(3) are “participants,”

“beneficiaries,” and “fiduciaries.”     See 29 U.S.C. § 1132(a)(3).

The Supreme Court has expressed multiple times that ERISA is a




                                23
“carefully crafted and detailed enforcement scheme,” Mertens v.

Hewitt Assocs., 508 U.S. 248, 254 (1993), that ERISA § 502 is

“comprehensive” and “carefully integrated,” Massachusetts Mutual

Life Ins. Co. v. Russell, 473 U.S. 134 (1985), and that “ERISA

carefully enumerates the parties entitled to seek relief under §

502.”   Franchise Tax Bd. v. Construction Laborers Vacation

Trust, 463 U.S. 1, 27 (1983).   This court thus places great

weight on the fact that unions were not included in §

502(a)(3)’s list of parties entitled to bring suit.   See also

Great-W. Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 209

(2002) (“[W]e have noted that ERISA's carefully crafted and

detailed enforcement scheme provides strong evidence that

Congress did not intend to authorize other remedies that it

simply forgot to incorporate expressly.” (internal quotations

and citations omitted)).

     Therefore, this court finds that by confining the right to

sue under § 502(a)(3) to plan participants, beneficiaries, and

fiduciaries, Congress intended to prevent unions from suing on

behalf of participants except when the unions are acting in a

fiduciary capacity.   Here, the UMWA is not acting in a fiduciary

capacity, and has not attempted to claim that it is suing in a

fiduciary capacity.   Instead, it is acting in a solely

representational capacity.   See Forys v. United Food &

                                24
Commercial Workers Int'l Union, 829 F.2d 603, 607 (7th Cir.

1987) (a union is not a fiduciary when it “performs solely the

task of presenting the claims of its individual members”).

Thus, the UMWA does not have standing to bring the ERISA §

502(a)(3) claim in Count II.   See Licensed Div. Dist. No. 1

MEBA/NMU, AFL-CIO v. Defries, 943 F.2d 474, 478 (4th Cir. 1991)

(“[A] union does not have standing under § 1132 . . . [to sue]

on behalf of its members since in such a representative role it

is not acting as a fiduciary.”).

     As such, the UMWA does not have standing to bring its Count

II ERISA claim, and the court hereby DISMISSES the UMWA’s ERISA

claim - claims 5) and 6) as previously listed.

          ii. Retiree-Plaintiffs’ standing

     The Subsidiaries argue that not only does the UMWA not have

standing to sue under ERISA, but the Retiree-Plaintiffs also

lack Article III standing because they have not suffered a

legally sufficient injury.   The Subsidiaries contend that

nowhere in the SAC is an alleged injury pled.    Even if the SAC

had included the allegations of collective anxiety, fear, or

apprehension from receipt of the Retiree Letters – as has been

argued by plaintiffs in briefs – the Subsidiaries argue that

emotional distress from misleading communications falls far

beneath Article III’s floor of personalized, concrete injury-in-

                                25
fact, and that abstract allegations of possible future injury

are insufficient to satisfy Article III standing requirements.

Moreover, they argue that the fact that plaintiffs have alleged

a statutory injury under ERISA is insufficient to remedy the

lack of constitutionally required standing.

     Plaintiffs respond that the Retiree-Plaintiffs possess

Article III standing for four reasons:   “first, the violation of

a statutory right or requirement can, in and of itself, satisfy

the injury-in-fact requirement of Article III; second,

Defendants ignore the specific considerations to establish

standing in an ERISA case; third, this case is unlike the

district court cases relied on by Defendants; and fourth,

Plaintiffs have adequately asserted injury-in-fact to establish

constitutional standing.”   (ECF No. 115.)

     First, plaintiffs argue that harm exists from the invasion

of the statutorily created ERISA protection; an Article III

injury can exist “solely” by virtue of “statutes creating legal

rights, the invasion of which creates standing.”   (Id. (quoting

Havens Realty Corp. v. Coleman, 455 U.S. 363, 373 (1982)).)

Second, many courts, including the Second and Ninth Circuits,

have concluded that it is not necessary to plead any injury

other than the injury of receiving misleading information from

their ERISA plan fiduciary.   Third, plaintiffs contend that the

                                26
Fourth Circuit in Holland did not reject the possibility that

statutory standing could give rise to a legally cognizable

injury if that injury was asserted by the beneficiaries directly

impacted by misrepresentations, as is the case here.

Additionally, plaintiffs note that but for the court’s

injunction in this case, defendants would have unilaterally

implemented the plan changes and caused irreparable harm to

plaintiffs.   And fourth, as previously argued in prior briefs,

the misrepresentations by CONSOL caused the harm of anxiety and

distress in the retirees; intangible injuries can be considered

concrete injuries under Article III standing doctrine.   Further,

plaintiffs argue that to allow a plan fiduciary to communicate

misrepresentations so long as it does not actually change the

plan would be contrary to ERISA’s express statutory purpose of

protecting the interests of participants and beneficiaries by

providing appropriate remedies and access to federal courts.

Lastly, plaintiffs request that, should the court find that

injury was not sufficiently pled in the SAC, they be given leave

to file a Third Amended Complaint, which would provide specific

examples of harm incurred by the Retiree-Plaintiffs resulting

from the misinformation they received.

     The Subsidiaries reply that Fourth Circuit law in David v.

Alphin, 704 F.3d 327 (4th Cir. 2013), is inapposite to

                                27
plaintiffs’ arguments.   They point to the Fourth Circuit’s

language in David, which stated that “[a]ppellants failed to

plead that they personally have sustained a concrete and

particularized injury.   Nor in our view, does trust law, or the

deprivation of a statutory right under ERISA, give rise to an

Article III injury-in-fact.”   Id. at 343.   The Subsidiaries

argue that this court’s issuing of a preliminary injunction in

this case does not excuse plaintiffs from satisfying Article III

standing for each count in the SAC, and that no policy

considerations support finding standing for an injury divorced

from harm, particularly when the declaratory remedy sought is

largely fulfilled by the legal remedy provided in the LMRA Count

I claim.   Moreover, they argue that if a plan participant had

Article III standing to bring a fiduciary breach action every

time they received a communication the participant thought was

erroneous, the courts would be flooded with cases.

                  1. Statutory standing

     The court finds that the Retiree-Plaintiffs clearly possess

statutory standing.   They have pled a breach of fiduciary duty

in violation of ERISA.   See Griggs v. E.I. DuPont de Nemours &

Co., 237 F.3d 371, 380 (4th Cir. 2001) (“ERISA administrators

have a fiduciary obligation ‘not to misinform employees through

material misrepresentations and incomplete, inconsistent or

                                28
contradictory disclosures.’” (quoting Harte v. Bethlehem Steel

Corp., 214 F.3d 446, 452 (3d Cir. 2000)).   This statutory

standing is also conceded in the Subsidiaries’ second motion to

dismiss:   “the Court properly assumes that the six individual

plaintiffs are among the class of individuals with statutory

authorization to sue their ERISA Plan over an alleged ERISA

violation, see 29 U.S.C. § 1132(a), and that breach of fiduciary

duty is a statutory injury established by ERISA.”   (ECF No.

112.)

     However, the Subsidiaries are correct that the Fourth

Circuit has made clear that ERISA statutory standing and Article

III constitutional standing are “distinct requirements.”     See,

e.g., David, 704 F.3d at 338 (collecting ERISA cases).    Thus,

this court has the power to entertain the Retiree-Plaintiffs’

ERISA claim “only where [plaintiffs] have both statutory and

constitutional standing.”   Id. (emphasis in original).

                  2. Article III standing

                       a. Previous injunction

     To begin, this court’s earlier granting of a preliminary

injunction in plaintiffs’ favor has no bearing on whether the

Retiree-Plaintiffs possess Article III standing for their ERISA

claim.   The need to satisfy the three elements of Article III




                                29
standing “persists throughout the life of the lawsuit.”        Wittman

v. Personhuballah, 136 S. Ct. 1732, 1736 (2016).

                       b. Article III standing requirements

     Regarding Article III standing itself, to establish injury-

in-fact, a plaintiff must show that he or she suffered “an

invasion of a legally protected interest” that created an injury

which is “concrete and particularized” and “actual or imminent,

not conjectural or hypothetical.”      Lujan v. Defenders of

Wildlife, 504 U.S. 555, 559–60 (1992).      For an injury to be

“particularized,” it “must affect the plaintiff in a personal

and individual way.”   Spokeo, Inc. v. Robins, 136 S. Ct. 1540,

1548 (2016) (quoting Lujan, 504 U.S. at 560 n.1).      And for an

injury to be “concrete,” it must be de facto and actually exist,

rather than be merely abstract.    Id.

                       c. Statutory injury itself insufficient

     Plaintiffs claim that a statutory injury may itself be

sufficient to create Article III standing, arguing that injury

can exist “solely” by virtue of “statutes creating legal rights,

the invasion of which creates standing.”      Havens Realty Corp. v.

Coleman, 455 U.S. 363, 373 (1982).      They refer to the Supreme

Court’s statements in Spokeo that “Congress may “elevat[e] to

the status of legally cognizable injuries concrete, de facto

injuries that were previously inadequate in law.”      Spokeo, 136

                                  30
S. Ct. at 1549 (quoting Lujan, 504 U.S. at 578, 580).

Plaintiffs also refer to a decision from the Ninth Circuit which

concluded that it is not necessary to plead any injury other

than the bare injury of receiving misleading information from

their ERISA plan fiduciary.   See Shaver v. Operating Eng'rs

Local 428 Pension Trust Fund, 332 F.3d 1198, 1202-03 (9th Cir.

2003) (holding that failure to allege a loss was not fatal to

the beneficiaries' claim because “[t]he question of whether a

fiduciary violated his fiduciary duty is independent from the

question of loss” and that “[r]equiring a showing of loss in

such a case would be to say that the fiduciaries are free to

ignore their duties so long as they do no tangible harm”).

     However, plaintiffs’ arguments misconstrue the Supreme

Court’s ruling in Spokeo, and do not reflect the law of the

Fourth Circuit.   Spokeo itself states that “Article III standing

requires a concrete injury even in the context of a statutory

violation.   For that reason, [a plaintiff] could not, for

example, allege a bare procedural violation, divorced from any

concrete harm, and satisfy the injury-in-fact requirement of

Article III.”   136 S. Ct. at 1549 (2016).   Moreover, Fourth

Circuit law confirms that neither trust law nor the “deprivation

of a statutory right under ERISA . . . give rise to an Article

III injury-in-fact.”   David, 704 F.3d at 343.   Instead,

                                31
plaintiffs must show concrete harm in addition to the ERISA

statutory violation.   See Baehr v. Creig Northrop Team, P.C.,

953 F.3d 244, 256 (4th Cir. 2020) (holding no Article III

standing where there is “a statutory violation divorced from any

real world effect”); Holland v. Consol Energy, Inc., 781 F.

App'x 209, 214 (4th Cir. 2019) (“Without any concrete harm or

risk of real harm, the plaintiffs have alleged only a bare

statutory violation that can’t satisfy Article III

requirements.”).

                        d. Emotional distress insufficient

     The SAC contains one statement that may show concrete harm

caused by the fiduciary breach, as it states that following

retirees’ receipt of the Retiree Letters sent by CONSOL, “UMWA

staff subsequently fielded a great number of telephone calls

from anxious retirees concerned about their health benefits.”

(ECF No. 78, ¶ 26.)    Plaintiffs argued in their briefs that the

retirees’ anxiety and emotional distress caused by CONSOL’s

alleged misrepresentations constitutes concrete harm.   Indeed,

this court notes that in some cases, “a plaintiff’s emotional

distress, anger, and frustration can distinguish cognizable

injuries from bare procedural violations.   Suarez v. Camden

Prop. Tr., 2019 WL 3423427, at *3 (E.D.N.C. July 29, 2019).




                                 32
      However, there are three faults with plaintiffs’ argument.

First, the SAC gives no indication that any of the six Retiree-

Plaintiffs suffered anxiety or emotional distress as a result of

CONSOL’s letters.    The specific plaintiffs themselves must have

suffered the alleged injuries, and evidence of this is absent

here. 13   Second, injury must be particularized and not merely

abstract; generalized anxiety is not sufficiently distinct to

serve as injury-in-fact.    And third, emotional distress is not

the type of harm that satisfies Article III injury requirements

for ERISA 502(a)(3) claims.    This follows from the Supreme

Court’s explanation that “[i]n determining whether an intangible

harm constitutes injury in fact . . . the judgment of Congress

play[s] [an] important role.”     Spokeo, 136 S. Ct. at 1549.

      In enacting ERISA, Congress’s expressed concern was to

protect “the interests of participants in employee benefit

plans.”    29 U.S.C. § 1001(b).   The Supreme Court stated that a

beneficiary’s “interest” in the plan is his “nonforfeitable

right only to” the “defined level of benefits” established under


13Plaintiffs requested that, if the court were to find a lack of
concrete harm, plaintiffs be granted leave to file a Third
Amended Complaint in order to provide specific harms incurred by
plaintiffs due to defendants’ alleged breach of their fiduciary
duty. The court declines to grant leave to do so, as this
filing would be futile in light of the third (and possibly the
second) reason why emotional distress cannot satisfy Article
III’s concrete harm requirement.

                                  33
the plan.    Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 440

(1999).    The Fifth Circuit has explained that ERISA’s statutory

design and purpose, combined with the Supreme Court’s ruling on

Article II standing in Spokeo, means that “the mere allegation

of fiduciary misconduct in violation of ERISA, divorced from any

allegation of risk to defined-benefit-plan participants’ actual

benefits, [cannot] constitute de facto injury sufficient to

establish constitutional standing.”    Lee v. Verizon Commc'ns,

Inc., 837 F.3d 523, 530 (5th Cir. 2016).    There must be an

actual or imminent injury to a plaintiffs’ benefits to satisfy

Article III standing.    Thus, “ERISA does not authorize suits for

. . . emotional distress resulting from a plan's failure to

honor its obligations.”    Evans v. Akers, 534 F.3d 65, 73 (1st

Cir. 2008) (citing Reinking v. Philadelphia Am. Life Ins. Co.,

910 F.2d 1210, 1219–20 (4th Cir. 1990)); Brotherston v. Putnam

Investments, LLC, 2017 WL 2634361, at *5 (D. Mass. June 19,

2017), aff'd in part, vacated in part, remanded, 907 F.3d 17

(1st Cir. 2018) (“ERISA requires plaintiffs to prove losses to

the plan for any breach of fiduciary duty claim” (emphasis

added)).

     The Fourth Circuit ruled in a similar vein in its decision

in Beck v. McDonald, 848 F.3d 262 (4th Cir. 2017), relating to

claims under the Privacy Act.    There, the Fourth Circuit

                                 34
rejected the plaintiff’s claims that being “emotional[ly] upset”

and fearful were sufficient “adverse effects” to confer Article

III standing under the Privacy Act statutory scheme.    Id. at

272.    The Privacy Act required a plaintiff to prove actual

damages from a violation of the act, and not mere statutory

injury, because of the Act’s statutory construction and purpose.

See id.    Additionally, the Fourth Circuit in Dreher explained

that a plaintiff suffers a concrete injury when he suffers a

statutory violation, “and he ‘suffers, by [that violation] the

type of harm Congress sought to prevent.’”    Dreher v. Experian

Info. Sols., Inc., 856 F.3d 337, 345 (4th Cir. 2017)    (quoting

Friends of Animals v. Jewell, 828 F.3d 989, 992 (D.C. Cir.

2016)).    The court continued that “it would be an end-run around

the qualifications for constitutional standing if any nebulous

frustration resulting from a statutory violation would suffice”

to create a concrete injury for Article III standing purposes.

Id. at 346.

       The type of harm Congress sought to prevent through

allowing suits pursuant to ERISA § 502(a)(3) was injury to a

plaintiffs’ plan benefits.    Hughes Aircraft Co., 525 U.S. at

440.    Here, no such injury is alleged as the basis for

plaintiffs’ ERISA claim; instead, the injury alleged revolves

solely around the falsity of CONSOL’s communications.      (See ECF

                                 35
No. 78, ¶¶ 53-55.)   Moreover, such an injury to plan benefits is

not even possible given this court’s previous injunctive order

preventing defendants from changing the benefits due under the

terms of the Employer Plan.   Therefore, plaintiffs are “left

with a statutory violation divorced from any real world effect,

[which] does not confer standing.” Id. at 345–46. 14


14The court also notes the similarity of this case to that in
Holland v. Consol Energy, Inc., 781 F. App'x 209 (4th Cir.
2019). That case, like here, revolved around letters CONSOL
sent to plan beneficiaries informing them of upcoming changes to
their health coverage. Id. at 211. These letters, like here,
led to “numerous calls from beneficiaries who are concerned
about these changes to their coverage” and caused the 1992 Plan
and UMWA Trustees to “expended resources monitoring the
situation.” Id. And in that case, like here, plaintiffs sought
(in part) a declaratory judgment that CONSOL had violated a
statutory right, giving them a statutory injury. Id. at 211-12.
The Fourth Circuit found that the Holland plaintiffs did not
possess Article II standing; their alleged risk of future harm
caused by the changes was too speculative to create Article II
standing, and the statutory injury was itself insufficient
absent additional concrete injury or concrete risk of injury.
Id. at 212-14. Nowhere did the court mention that the
beneficiaries’ emotional distress or the time answering those
calls served as a valid, concrete injury-in-fact.

     The court does note there is one important difference
between this case and Holland: in Holland, no individual
beneficiaries were plaintiffs in that action – only the Trustees
of the 1992 plan were. See id. at 210. The district court
referenced this, stating that “[i]t may be that the
beneficiaries themselves have suffered a concrete and
particularized injury that is not hypothetical or speculative,
but no beneficiaries are named Plaintiffs in this matter.”
Holland v. CONSOL Energy Inc., 2018 WL 4323928, at *5 (S.D.W.
Va. Sept. 10, 2018) (Johnston, C.J.), aff'd, 781 F. App'x 209
(4th Cir. 2019).


                                36
     This ruling does not let ERISA plan fiduciaries off the

hook for misrepresentations.   Rather, it simply ensures that any

alleged intangible injury is tethered to the statutory scheme

and capable of producing real world effect.   Further, this

ruling prevents a potential flood of cases being filed from

plaintiffs alleging emotional distress from a fiduciary’s

misrepresentation when there is no actual or imminent harm to

their plan benefits.

     Therefore, the court finds that the Retiree-Plaintiffs do

not possess standing to bring their Count II ERISA claim, and

the court hereby DISMISSES the Retiree-Plaintiffs’ ERISA claim -

claims 7) and 8) as previously listed.

     Neither the UMWA nor the Retiree-Plaintiffs possess

standing to bring the ERISA claim in Count II.   Because there is

no ERISA claim left by either plaintiff against either

defendant, the court hereby DISMISSES Count II of plaintiffs’

Second Amended Complaint against all defendants - claims 5), 6),

7), and 8) as previously listed.




     This distinction prevents Holland from being controlling
on-point precedent against plaintiffs, but it does nothing to
help plaintiffs, as the court still directly states that
individual beneficiaries would need to show concrete and
particularized injury. Holland does not state that the evidence
of their calls or distress would or would not be sufficient to
meet that requirement.

                                37
       G. Failure to State a Valid ERISA § 502(a)(3) Claim

     The court has found that no plaintiff has standing to bring

its ERISA claim for making material misrepresentations in breach

of their fiduciary duties, and thus finds no need to address

whether plaintiffs’ ERISA claim against CONSOL fails to state a

valid claim under ERISA § 502(a)(3).   However, the court will

briefly explain why, in the alternative that even if plaintiffs

were to have standing to bring their ERISA claim, the ERISA

claim against the Subsidiaries must be dismissed because it is

facially lacking.

     “In order to establish a claim for breach of fiduciary duty

based on alleged misrepresentations, a plaintiff must show:    1)

that a defendant was a fiduciary of the ERISA plan, 2) that a

defendant breached its fiduciary responsibilities under the

plan, and 3) that the participant is in need of injunctive or

other appropriate equitable relief to remedy the violation or

enforce the plan.”   Adams v. Brink's Co., 261 F. App'x 583, 589–

90 (4th Cir. 2008) (citing Griggs v. E.I. DuPont de Nemours &

Co., 237 F.3d 371, 379-80 (4th Cir. 2001) and Blair v. Young

Phillips Corp., 235 F. Supp. 2d 465, 470 (M.D.N.C. 2002)).




                                38
     Here, the second element is totally lacking as to the

Subsidiaries. 15   The SAC refers to five pieces of correspondence

sent to plan beneficiaries – the Retiree Letters - as the basis

for their ERISA fiduciary breach claim.       (See ECF No. 78, ¶¶ 26,

39, 40 and 41.)    In its ERISA claim in Count II of the SAC,

plaintiffs allege that CONSOL “for itself and its subsidiaries”

sent the Retiree Letters.    (Id. ¶ 53.)     However, plaintiffs have

previously and repeatedly stated that CONSOL – and not the

Subsidiaries – was the sole entity responsible for sending these

communications.    (See, e.g., ECF No. 16, ¶ 4 (“it is CONSOL

Energy and not its subsidiaries that engaged in the conduct at

issue in this case”); ECF No. 25, ¶¶ 3-4 (“CONSOL Energy has

undertaken the conduct and transmitted the correspondence at

issue”).)   Moreover, this court previously ruled on these exact

lines, relying on the plaintiffs’ aforementioned statements

laying responsibility on CONSOL.       See Int’l Union, UMWA v.

Consol Energy, Inc., 243 F. Supp. 3d 755, 762 (S.D.W. Va. 2017)

(“Notably, CONSOL Energy, and not its individual Subsidiaries .

. . transmitted the salient correspondence (invariably on

‘CONSOL Energy, Inc.’ letterhead)”); Int'l Union, UMWA v. CONSOL



15As this second element is lacking, the court need not address
defendants’ contention that plaintiffs’ ERISA claim also cannot
satisfy the third element.

                                  39
Energy, Inc., 2018 WL 2328028, at *5 (S.D.W. Va. May 21, 2018)

(“CONSOL's Subsidiaries did not engage in any action regarding

the alleged misleading communications at issue.”)

     The Subsidiaries are correct that plaintiffs’ prior

statements (and this court’s finding) that CONSOL transmitted

the Retiree Letters is an admission which judicially estops

plaintiffs from making a valid claim that the Subsidiaries have

breached their fiduciary duty by sending out the Retiree

Letters.   See Lucas v. Burnley, 879 F.2d 1240, 1242 (4th Cir.

1989) (holding that a party is bound by the admissions of his

pleadings).    Plaintiffs have alleged no action taken by the

Subsidiaries that constituted a breach of fiduciary duty under

ERISA, and thus this serves as an alternative ground upon which

the court hereby DISMISSES the ERISA claims against the

Subsidiaries – claims 6) and 8), as previously listed.

       H. Personal Jurisdiction over the Subsidiaries

              i. Personal jurisdiction for ERISA claim

     Personal jurisdiction exists over the Subsidiaries as to

the ERISA claim due to ERISA’s nationwide service of process

provision.    The parties do not dispute this conclusion.   This is

not relevant for the court’s adjudication of the ERISA claim

itself, given that neither the UMWA or the Retiree-Plaintiffs

have standing to bring their ERISA claim and the SAC fails to

                                 40
state an ERISA claim against the Subsidiaries.    However, the

court states this conclusion plainly because of its potential

effect on whether personal jurisdiction exists over the

Subsidiaries as to the LMRA claim via the theory of pendent

personal jurisdiction.

             ii. Personal Jurisdiction for LMRA claim

     In its memorandum opinion and order granting the

preliminary injunction, this court found that this court lacks

personal jurisdiction over the Subsidiaries.    See Int’l Union,

UMWA v. Consol Energy, Inc., 243 F. Supp. 3d 755, 761-62 (S.D.W.

Va. 2017).    This court previously found that “[t]here is neither

general nor specific jurisdiction over these Defendants since

they are not situated in West Virginia and they have committed

no substantial activities here that would open them to being

sued here. They have not purposefully availed themselves of the

benefits here.”    Id.   Plaintiffs have offered no new facts that

would change this analysis and create personal jurisdiction over

the Subsidiaries.    Therefore, the court today reaffirms its

earlier finding, and concludes that a traditional due process

minimum contacts analysis shows that there is no personal

jurisdiction over the Subsidiaries on the LMRA claim.

     However, plaintiffs argue that personal jurisdiction exists

over the Subsidiaries as to the LMRA claim either:      1) through

                                  41
the exercise of pendent personal jurisdiction; 2) through the

Subsidiaries’ presence before this court in the transferred

Second WDPa Suit; or 3) through the fact that personal

jurisdiction exists over the Subsidiaries’ agent and parent

corporation – CONSOL - via the alter ego theory to personal

jurisdiction.   The Subsidiaries reply that pendent personal

jurisdiction is unwarranted in this case because it would lead

to “abandoning time-honored, minimum contacts jurisdictional . .

. constraints long applied to LMRA jurisprudence.” 16   (ECF No.

102.)   Additionally, the Subsidiaries contend that there are

clear facial deficiencies within the ERISA claim against them;

allowing this faulty ERISA claim to be the source from which

personal jurisdiction exists against them for the LMRA claim is

not the type of situation where pendent personal jurisdiction

should be exercised.

                1. The Second WDPa Suit

     The court rejects the contention that the Subsidiaries are

subject to personal jurisdiction in this case because their


16More specifically, the Subsidiaries argue that unlike other
cases where pendent personal jurisdiction has been exercised –
such as federal antitrust, bankruptcy, class action,
interpleader, patent, racketeering, or securities fraud suits –
the procedural and jurisdictional constraints on LMRA claims are
based off of a congressionally-created balance between labor and
management, and thus the court should not use its discretion to
exercise pendent personal jurisdiction and upset this balance.

                                42
Second WDPa Suit was transferred to this district and is pending

before this court.    The Subsidiaries have been present in that

action, filing a notice of appearance and a motion to transfer

back to the WDPa.    See Second WDPa Suit, ECF Nos. 39 and 46.

However, in their first pleadings in the Second WDPa Suit

following transfer to this court, the Subsidiaries clearly

express that they dispute jurisdiction in this court in this

suit, and their motion to transfer is pled in the alternative to

their motions to dismiss in this case.    Thus, the court finds

that the Subsidiaries have not waived their objection to

personal jurisdiction or consented to the court’s personal

jurisdiction over them in this matter.    Moreover, it would be

inequitable for a defendant to be subjected to personal

jurisdiction merely because another case of theirs was

transferred to the instant forum in spite of their opposition. 17




17The court also notes that when the WDPa transferred the Second
WDPa Suit to this district, it did so thinking that its transfer
would not be a jurisdictional event. See Helvetia Coal Co. v.
United Mine Workers of Am., Int'l Union, 2018 WL 3122378, at *3
(W.D. Pa. June 26, 2018) (“[P]ermitting the Union Plaintiffs to
file a second amended complaint in the West Virginia Action . .
. allowed the Union Plaintiffs to assert a claim to confirm the
Trustees' arbitration determination and a claim under ERISA,
thus allowing the addition of CONSOL’s four subsidiary companies
as defendants.”).

                                 43
                2. Pendent personal jurisdiction

     The court also declines to exercise its discretion to apply

the doctrine of pendent personal jurisdiction.     Under the

doctrine of pendent personal jurisdiction, “a court may assert

pendent personal jurisdiction over a defendant with respect to a

claim for which there is no independent basis of personal

jurisdiction so long as it arises out of a common nucleus of

operative facts with a claim in the same suit over which the

court does have personal jurisdiction.”   Action Embroidery Corp.

v. Atl. Embroidery, Inc., 368 F.3d 1174, 1180–81 (9th Cir.

2004).   The Circuit Courts of Appeals are split on whether

courts can and should exercise pendent personal jurisdiction:

the Second, Seventh, Ninth, Tenth, and D.C. Circuits have

authorized courts to exercise pendent personal jurisdiction,

see, e.g., Action Embroidery Corp., 368 F.3d at 1180–81; United

States v. Botefuhr, 309 F.3d 1263, 1272–75 (10th Cir. 2002);

Robinson Eng'g Co., Ltd. Pension Plan Trust v. George, 223 F.3d

445, 449–50 (7th Cir. 2000); IUE AFL–CIO Pension Fund v.

Herrmann, 9 F.3d 1049, 1056–57 (2d Cir. 1993); Oetiker v. Werke,

556 F.2d 1, 5 (D.C. Cir. 1977), while the First, Third, and

Fifth Circuits have ruled against exercises of pendent personal

jurisdiction.   See, e.g., Seiferth v. Helicopteros Atuneros,

Inc., 472 F.3d 266, 274–75 (5th Cir. 2006); Remick v. Manfredy,

                                44
238 F.3d 248, 255 (3d Cir. 2001); Phillips Exeter Acad. v.

Howard Phillips Fund, Inc., 196 F.3d 284, 289 (1st Cir. 1999).

     All courts that have authorized pendent personal

jurisdiction have left its exercise within the discretion of the

district court, and it may only be applied to grant personal

jurisdiction over a claim that shares a common nucleus of

operative facts with a claim in the same suit over which the

court does have personal jurisdiction.   See Action Embroidery

Corp., 368 F.3d at 1180–81 (“Like our sister circuits, we hold

that the actual exercise of personal pendent jurisdiction in a

particular case is within the discretion of the district

court.”).   Here, there are no doubts that the two claims are in

the same suit and share a common nucleus of operative fact.

     The Fourth Circuit has authorized pendent personal

jurisdiction over state claims joined with a federal claim that

does convey personal jurisdiction.   See ESAB Grp., Inc. v.

Centricut, Inc., 126 F.3d 617, 628 (4th Cir. 1997).   In so

holding, the Fourth Circuit reasoned that

     When a federal statute authorizes a federal district
     court to exercise personal jurisdiction over a
     defendant beyond the borders of the district and the
     defendant is effectively brought before the court, we
     can find little reason not to authorize the court to
     adjudicate a state claim properly within the court's
     subject matter jurisdiction so long as the facts of
     the federal and state claims arise from a common

                                45
      nucleus of operative fact. The defendant will have to
      adjudicate the facts of the federal claim, and it
      could impose only a minimal burden to require the
      defendant to provide a defense on the factually-
      related state claim.

Id.   However, the Fourth Circuit has not applied pendent

personal jurisdiction to create jurisdiction over another

federal claim, as opposed to a state claim – as plaintiffs are

asking the court to do here.

      Several district courts in the Fourth Circuit have

criticized pendent personal jurisdiction, particularly in these

instances where both claims are federal claims.   See, e.g.,

Edwards v. Schwartz, 378 F. Supp. 3d 468, 491 (W.D. Va. 2019);

Gatekeeper Inc. v. Stratech Sys., 718 F. Supp. 2d 664, 667–68

(E.D. Va. 2010) (critiquing pendent jurisdiction on the grounds

that out-of-state defendants “could not reasonably anticipate

being haled into court on claims unrelated to [their] forum

state contacts, and thus [doing so] would violate their due

process rights”).   However, the court finds that the Fourth

Circuit’s rational in ESAB applies equally to exercising pendent

personal jurisdiction over a fellow federal claim.   The

defendant is already before the court on a matter with a common

nucleus of operative fact, and the minimal burden is equivalent

whether the pendent claim is a federal or a state claim.



                                46
“[J]udicial economy and convenience of the parties is best

facilitated by a consideration of all legal theories arising

from a single set of operative facts. . . . Once that set of

facts and defendants are legitimately before the court . . .

little would be gained by not requiring a defendant to defend

against a certain type of theory superimposed upon those facts.”

ESAB, 126 F.3d at 628 (quoting Sohns v. Dahl, 392 F. Supp. 1208,

1218 (W.D. Va. 1975)).

     Thus, the court concludes it is within its right to use its

discretion to exercise pendent personal jurisdiction over the

Subsidiaries for the LMRA claim, as there is personal

jurisdiction over them from the ERISA claim.   However, the court

declines to do so for the following reasons.

     In deciding whether to exercise its discretion to exercise

pendent personal jurisdiction, courts should consider the

interests of judicial economy, convenience, and whether the

exercise of jurisdiction on the defendant is reasonable and fair

to litigants.   See Pet Specialties, LLC, v. NavisionTech, Inc.,

2019 WL 4773623, at *8 (M.D.N.C. Sept. 30, 2019) (citing Action

Embroidery Corp., 368 F.3d at 1180–81); see also United Mine

Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966) (“[P]endent

jurisdiction is a doctrine of discretion, not of plaintiff's

right. Its justification lies in considerations of judicial

                                47
economy, convenience and fairness to litigants; if these are not

present a federal court should hesitate to exercise

jurisdiction.”).   In this case, although it may be convenient

and in the interests of judicial economy to exercise pendent

personal jurisdiction if the ERISA claim remained, it would be

remarkably unfair to the Subsidiaries given the facial

weaknesses of the ERISA claim against the Subsidiaries, which is

the claim serving as the hinge of the exercise.

     The court has ruled herein that neither the UMWA nor the

Retiree-Plaintiffs have standing to bring their ERISA claim.

Moreover, the court has also discussed how plaintiffs have not

alleged any actions taken by the Subsidiaries which could

constitute a breach of fiduciary duty.       Instead, the ERISA claim

relies upon misrepresentations in the Retiree-Letters sent out

by CONSOL, on CONSOL letterhead.       Plaintiffs have pled no

involvement by the Subsidiaries in these misrepresentations.

Thus, while the standing issue is admittedly a closer question,

it is exceedingly clear that the ERISA cause of action against

the Subsidiaries must be dismissed.

     The court has not found a case where pendent personal

jurisdiction is exercised while the court simultaneously

dismisses the claim which it possesses jurisdiction over.        There

are several likely reasons why.    To do so would be an unadvised

                                  48
extension of the doctrine of pendent personal jurisdiction.     The

dismissal of the jurisdiction-creating claim also destroys the

interests of convenience and judicial economy, as there would no

longer be any reason why the case should persist before the

court.   Moreover, if the court were to decide to exercise

pendent personal jurisdiction in this case despite the obvious

deficiencies in the claim serving as the source of jurisdiction,

this would serve as an incentive to all plaintiffs who may lack

personal jurisdiction to add meritless claims where federal

personal jurisdiction is present to try to use them as a

jurisdictional loophole.

     Additionally, exercising pendent personal jurisdiction in

this context would be manifestly unfair to the Subsidiaries.

This court has previously established that it lacks personal

jurisdiction over the Subsidiaries, as they do not have minimum

contacts to West Virginia.   While ERISA’s nationwide service of

process is in some senses an end-around of personal jurisdiction

limitations, it is a Congressionally created and sanctioned one.

But to hale the Subsidiaries into court through a claim that the

court has simultaneously dismissed creates significant due

process concerns.   Therefore, the court declines to exercise

pendent personal jurisdiction over the Subsidiaries on the LMRA

claim against them.

                                49
                 3. Agency and alter ego theory

     The court finds that it cannot exert personal jurisdiction

on the Subsidiaries merely because it has personal jurisdiction

over CONSOL, the Subsidiaries’ agent. 18   Prior to Daimler, this

might have been the case.    However, in Daimler,   the Supreme

Court completely repudiated agency-based jurisdiction when it

would subject a defendant to general personal jurisdiction.       See

Daimler AG v. Bauman, 571 U.S. 117, 136 (2014) (“[A]gency theory

thus appears to subject foreign corporations to general

jurisdiction whenever they have an in-state subsidiary or

affiliate, an outcome that would sweep beyond even the

‘sprawling view of general jurisdiction’ we rejected in

Goodyear.”).    CONSOL is subject to general personal jurisdiction

in this case because they waived their defense to personal

jurisdiction.   See supra.   Moreover, CONSOL would not be subject

to specific personal jurisdiction in this case, as the relevant

actions in this case took place outside the forum:     the ROD

arbitration proceeding occurred in Washington, D.C., and the

Retiree Letters were sent from CONSOL’s headquarters in

Pennsylvania.   No specific acts taken by CONSOL can be


18CONSOL is also the parent of the Subsidiaries. But a parent-
subsidiary relationship does not by itself support jurisdiction.
Saudi v. Northrop Grumman Corp., 427 F.3d 271, 276 (4th Cir.
2005).

                                 50
attributed to the Subsidiaries that would legitimize the

exertion of specific personal jurisdiction over them.     Thus,

attempting to assert personal jurisdiction via agency

jurisdiction theory runs into the due process problems

prohibited by Daimler.

     The court also cannot exert personal jurisdiction over the

Subsidiaries via the alter ego theory.     Alter ego theory states

that a court “may exercise personal jurisdiction vicariously

over an individual if the court has jurisdiction over the

individual’s alter ego company.”     Sky Cable, LLC v. DIRECTV,

Inc., 886 F.3d 375, 391–92 (4th Cir. 2018).     Here the court has

jurisdiction over CONSOL because CONSOL waived its defense to

personal jurisdiction.   Additionally, “[a] court may exercise

jurisdiction over an entity if its alter ego . . . ‘waived any

objections to lack of service of process.’”     Id. at 392 (quoting

Transfield ER Cape Ltd. v. Indus. Carriers, Inc., 571 F.3d 221,

224 (2d Cir. 2009)).

     However, the court does not go so far as to pierce the

corporate veil between CONSOL and the Subsidiaries.     Such an act

should only be done in extreme cases where the interests of

justice require it, such as in matters of fraud or where other

significant equitable considerations are present.     See Brookline

v. Gorsuch, 667 F.2d 215, 221 (1st Cir. 1981) (explaining that

                                51
under federal common law, the veil may be pierced only in the

interests of public convenience, fairness and equity); see also

Pauley Petroleum Inc. v. Cont'l Oil Co., 239 A.2d 629, 633 (Del.

1968).   Here, the court has relied on the record, testimony at

the preliminary injunction hearing, and agency theory to find

that CONSOL is a signatory to the Employer Plan, its ROD

grievance procedure, and is thus subject to LMRA § 301.    See

supra; Int’l Union, UMWA v. Consol Energy, Inc., 243 F. Supp. 3d

755, 758-59, 762 (S.D.W. Va. 2017); see also Thomson-CSF, S.A.

v. Am. Arbitration Ass'n, 64 F.3d 773, 776 (2d Cir. 1995)

(agency is a valid theory for binding non-signatories to

arbitration agreements).   The court does not find that the

factors are present to fully pierce the corporate veil, as there

is no alleged fraud, there is no lack of corporate formalities

or abandonment of the corporate structure, among others.    See

id. at 778; Brookline, 667 F.2d at 221; (see also ECF No. 79,

Ex. 1 ¶ 13.)   Therefore, the court does not find the conditions

present to pierce the corporate veil, and the alter ego theory

of personal jurisdiction is unavailable.

     There is no proper method for this court to exert personal

jurisdiction over the Subsidiaries on the LMRA claim.   Thus,

both plaintiffs’ Count I claim against the Subsidiaries - claims




                                52
2) and 4) as previously listed - is hereby DISMISSED for lack of

personal jurisdiction.

       I. Venue for Claims Against the Subsidiaries

     The court has thus far found that personal jurisdiction

does not exist over the Subsidiaries as to the Count I LMRA

claim, and neither plaintiff has standing to bring their Count

II ERISA claim.   To that extent, no claim remains against the

Subsidiaries in this case by any plaintiff.   Therefore, the

court finds no need to address the Subsidiaries’ arguments that

venue is improper as to the LMRA and ERISA claims.

       J. Exhaustion of Administrative Remedies for ERISA Claim

     The court has also thus far found that neither plaintiff

has standing to bring the Count II ERISA claim.   To that extent,

no ERISA claim remains against either CONSOL or the

Subsidiaries.   Therefore, the court finds no need to address the

defendants’ arguments that the Retiree-Plaintiffs’ ERISA claim

must be dismissed for failure to exhaust administrative

remedies.

       K. Plaintiffs’ motion to consolidate

     Plaintiffs argue that this case and the Second WDPa Suit

should be consolidated pursuant to Rule 42(a) of the Federal

Rules of Civil Procedure because they involve the same parties

and near identical issues, there is no risk of prejudice or

                                53
confusion through consolidation, and it is in the interests of

judicial economy to merge the two cases.   Defendants oppose

consolidation, arguing that there is no threat of inconsistent

rulings because both cases are assigned to the same judge, and

there is no prejudice or loss of judicial economy by keeping

cases separate pending rulings on motions to dismiss.

Defendants also claim that if the court were to rule on the

motions to dismiss prior to ruling on the motion to consolidate,

either a ruling in plaintiffs’ or defendants’ favor would moot

the need for consolidation.

     “[P]roper application of Rule 42(a) requires the district

court to determine whether the specific risks of prejudice and

possible confusion from consolidation were overborne by the risk

of inconsistent adjudications . . . the burden on parties,

witnesses, and available judicial resources posed by multiple

lawsuits, the length of time required to conclude multiple suits

as against a single one, and the relative expense to all

concerned of the single-trial, multiple-trial alternatives.”

Campbell v. Boston Sci. Corp., 882 F.3d 70, 74 (4th Cir. 2018).

Consolidation is a matter of the court’s discretion.    See Fed.

R. Civ. P. 42(a); A/S J. Ludwig Mowinckles Rederi v. Tidewater

Construction Corp., 559 F.2d 928, 933 (4th Cir. 1977) (“District

courts have broad discretion . . . to consolidate causes pending

                               54
in the same district.”).   A court may also order the

consolidation of cases despite the opposition of the parties.

See Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285, 293 (1892).

When exercising this discretion, district courts should “weigh

the risk of prejudice and possible confusion versus the

possibility of inconsistent adjudication of common factual and

legal issues, the burden on the parties, witnesses, and judicial

resources by multiple lawsuits, the length of time required to

try multiple suits versus a single suit, and the relative

expense required for multiple suits versus a single suit.”   In

re Cree, Inc., Sec. Litig., 219 F.R.D. 369, 371 (M.D.N.C. 2003)

(citing Arnold v. Eastern Air Lines, Inc., 681 F.2d 186, 193

(4th Cir. 1982)).

     Here, the court finds that the two cases involve common

questions of law and fact, 19 and judicial economy significantly


19In the Second WDPa Suit, all of the Subsidiaries’ claims made
in their Amended Complaint are predicated on the exact same
factual basis as this case, and all claims similarly relate to
validity and enforcement of the Trustees’ ROD decision. See
Second WDPa Suit, 1:18-cv-01095 (S.D.W. Va. filed Oct. 31,
2017), ECF No. 25. The Subsidiaries make the following five
claims in their Amended Complaint: 1) The Trustees lack the
authority under the expired 2011 NBCWA to decide ROD No. 11-
0143; 2) ROD No. 11-0143 must be vacated because the Trustees
did not have the authority to decide their own jurisdiction or
to resolve the 2017 HRA controversy; 3) Enrollment of
Plaintiffs’ age 65 Medicare eligible retirees and age 65
dependents in a Health Reimbursement Account (HRA) does not
violate Plaintiffs’ obligation to provide health benefits to

                                55
favors consolidation.   Due to the rulings in this opinion

dismissing all claims against the Subsidiaries, the two cases

now involve different parties:   this case is a suit by the UMWA

against CONSOL, while the other case involves a suit by the

Subsidiaries against the UMWA.   However, the Subsidiaries should

have no concern that consolidation would simply be an end-around

to rope the Subsidiaries back into the instant case.   As the

Supreme Court has explained, “consolidation is permitted as a

matter of convenience and economy in administration, but does

not merge the suits into a single cause, or change the rights of

the parties, or make those who are parties in one suit parties

in another.   Johnson v. Manhattan Ry. Co., 289 U.S. 479, 496–97

(1933).

     The court does not find that its ruling this day moots

plaintiffs’ motion for consolidation; the LMRA claim by the UMWA

against CONSOL has survived the motions to dismiss, and thus

this case remains pending before this court.   It is in the

interests of judicial economy to consolidate the two cases at

this point now, prior to the beginning of time-consuming and




their retirees after the expiration of the 2011 NBCWA; 4) ROD
No. 11-0143 did not satisfy elements of fundamental fairness
because the Trustees are not neutral or impartial; and 5) The
requirements of the National Labor Relations Act govern the
parties’ retiree health benefits negotiations. Id.

                                 56
costly discovery.   Moreover, the court’s decision to transfer

the instant case creates an additional reason for consolidation.

If this case were transferred but the parallel Second WDPa Suit

not consolidated and transferred, then the cases would run the

risk of resulting in inconsistent rulings because they would be

before different judges in different districts.

     For these reasons, the court hereby GRANTS plaintiffs’

motion to consolidate this case with the Second WDPa Suit, 1:18-

cv-01095 (S.D.W. Va. filed Oct. 31, 2017).    This case, Int’l

Union, United Mine Workers of Am. v. Consol Energy, Inc., No.

1:16-cv-12506 (S.D.W. Va. filed Dec. 23, 2016), shall be the

lead case.

       L. The Subsidiaries’ motion to transfer

     The Subsidiaries argue that it is in the interests of

justice to transfer the case, as other venues – such as the

District of Columbia or the WDPa – are much more appropriate

forums and would not be subject to the jurisdictional and

procedural issues that have bogged this case down.

Additionally, they argue that plaintiffs’ initial choice of

forum is entitled to little or no weight.    Plaintiffs respond

opposing the motion to transfer, arguing that:    their choice of

forum is entitled to substantial weight; defendants have not

explained why the current forum is inconvenient to parties and

                                57
witnesses; judicial economy does not favor transfer when the

WDPa has already twice transferred cases to this court; and the

personal jurisdiction issues do not merit transfer because the

court has personal jurisdiction over the Subsidiaries.

     The Subsidiaries reply that the court should focus on Count

I when analyzing the transfer factors.    (See ECF No. 118.)      They

then argue that analyzing these factors weigh in favor of

transfer:    defendants and even the UMWA are inconvenienced by

this forum, and thus transfer would not shift inconvenience from

one party to the other; the interests of justice weigh in favor

of transfer because it would facilitate discovery, trial, and

resolve the considerable personal jurisdiction problems in this

case; and the D.C. Circuit is a better forum for enforcement of

the LMRA claim, as the ROD arbitration proceeding occurred in

Washington, D.C. and is the forum where the parties agreed to

arbitrate.

     The federal transfer of venue statute provides, “[f]or the

convenience of parties and witnesses, in the interest of

justice, a district court may transfer any civil action to any

other district . . . where it might have been brought.”      28

U.S.C. § 1404(a).    It is designed to “protect litigants,

witnesses and the public against unnecessary inconvenience and

expense.”    Continental Grain & Co. v. Barge FBL, 364 U.S. 19, 27

                                 58
(1960).    The proponent of transfer has the burden of persuasion,

and transfer will be denied if it merely shifts the

inconvenience from the defendant to the plaintiff.    See Branch

Banking & Tr. Co. v. ServisFirst Bank, 2019 WL 7165980, at *15

(S.D.W. Va. Dec. 20, 2019).

     Transfer motions are committed to a trial court’s

discretion and evaluated according to flexible and

“individualized, case-by-case considerations of convenience and

fairness.”   Stewart Org. v. Ricoh Corp., 487 U.S. 22, 29 (1988).

The Fourth Circuit has established four factors that a district

court should consider in deciding motions to transfer under §

1404(a):   “(1) the weight accorded to plaintiff’s choice of

venue; (2) witness convenience and access; (3) convenience of

the parties; and (4) the interest of justice.”   Trs. of the

Plumbers & Pipefitters Nat’l Pension Fund v. Plumbing Servs.,

Inc., 791 F.3d 436, 444 (4th Cir. 2015).

     Weighing the four factors, the court finds that factors

(2), (3), and (4) weigh in favor of transfer, and factor (1) is

weakened due to this court’s dismissal of the Retiree-

Plaintiff’s claims.   Thus, the court will exercise its

discretion to transfer this case to the District of Columbia.

     As to factor (1), “[a] plaintiff's ‘choice of venue is

entitled to substantial weight in determining whether transfer

                                 59
is appropriate.’”   Id. (quoting Bd. of Trs. v. Sullivant Ave.

Props., LLC, 508 F. Supp. 2d 473, 477 (E.D. Va. 2007)).

However, the one party which was a resident of this district -

the Retiree-Plaintiffs – is no longer a party to the case.

Having lost the plaintiff who was the only resident of this

district, the court finds that the plaintiffs’ choice of venue

in this forum is entitled to less weight than in regular

circumstances where the plaintiffs remain unchanged.

Furthermore, “when the operative facts underlying the cause of

action did not occur within the forum chosen by the Plaintiff,

the choice of forum is entitled to less consideration.”    A.J.

Taft Coal Co. v. Barnhart, 291 F. Supp. 2d 1290, 1310 (N.D. Ala.

2003).   The facts underlying the LMRA claim in Count I occurred

not here in West Virginia, but as part of the ROD proceedings in

Washington, D.C.

     Factor (2) weighs in favor of transfer to the District of

Columbia because many of the witnesses reside much closer to

Washington, D.C. than to southern West Virginia.   The UMWA

Health and Retirement Fund is headquartered in Washington, D.C.

and the UMWA has its general headquarters in northern Virginia.

(ECF No. 112, Ex. 1 ¶¶ 5-6.)   It is likely that many of the

relevant Plan officials and Union representatives who processed




                                60
the ROD 20 reside in or near these areas as well, and may be asked

to testify for post-arbitration discovery as judicial review of

the Trustees’ ROD decision commences.   The court need not

discuss, if this case remained in this district, whether or not

these individuals would be outside of this district’s subpoena

power.   The close proximity of anticipated witnesses in this

particular ROD enforcement suit itself demonstrates convenience

that favors transfer to the District of Columbia. 21

     Factor (3) also weighs in favor of transfer to the District

of Columbia.   Although the UMWA has offices in the SDWVa, it is

headquartered in northern Virginia.   CONSOL is headquartered in

Pennsylvania, and thus a transfer to the District of Columbia

may only be of marginal increased convenience.   However, neither

party argues that a transfer to the District of Columbia will

inconvenience them, and thus there is no concern here that the



20The Subsidiaries state that potential witnesses will include
(i) UMWA representatives who communicated with the 1993 Plan
Trustees and their staff concerning the Richard Fink ROD
Complaint, (ii) the 1993 Plan Trustees appointed by the UMWA who
served as arbitrators in the dispute, (iii) the Trustee-
arbitrator unaffiliated with the UMWA, and (iv) UMWA Health and
Retirement Funds staff who prepared and recommended the decision
to the Arbitrators.

21Further, plaintiffs have not argued that transfer to D.C.
would create inconveniences. Instead, they merely argued that
transfer would not be more convenient – an argument this court
disagrees with for the above reasons.

                                61
transfer merely shifts the inconvenience from the defendant to

the plaintiff.    See Branch Banking, 2019 WL 7165980, at *15.    If

anything, from a convenience perspective, the transfer benefits

the UMWA more than it does CONSOL.

     The interests of justice also weigh in favor of transfer to

the District of Columbia.    Plaintiffs allege that transfer would

not be in the interests of justice because it would delay this

proceeding.   The court readily admits that, due to the

procedural and jurisdictional complexity in this case, this

proceeding has already been significantly delayed.    But the

court finds that there would be no additional delay through

transfer to the District of Columbia.    In fact, transfer may

facilitate the speedy remainder of the proceedings, particularly

if plaintiffs attempt to again amend their complaint in some

manner to re-join the Subsidiaries.    The court agrees with

plaintiffs that it would not be in the interests of justice to

transfer this case to the WDPa, which has already transferred

parallel cases to this court on two occasions.    See First WDPa

Suit; Second WDPa Suit.    However, transfer to the District of

Columbia does not have the effect of reversing court judgments

in this manner.    Although this court has “expended substantial

time and thoughtful consideration to the legal questions

surrounding this factual situation,” Helvetia Coal Co. et al v.

                                 62
UMWA, 2017 WL 3669415 at *7-8 (W.D. Pa. Aug. 23, 2017), the

District of Columbia is a more appropriate and convenient venue

to litigate the remaining LMRA § 301 arbitration enforcement

claim (and the similar claims made by the Subsidiaries in the

consolidated case).    Now is also an appropriate time to

transfer, as it is prior to discovery beginning.

     It is also in the interests of justice to transfer to the

District of Columbia because there are no procedural or

jurisdictional impediments with such a transfer.    The District

of Columbia would have subject matter jurisdiction and be a

proper venue to adjudicate Count I, as it seeks an order

confirming the 2017 ROD Arbitration Award which was rendered in

Washington, D.C. 22   (See ECF No. 78, ¶ 3.)   Moreover, the court

notes that the District Court for the District of Columbia would

have had personal jurisdiction over the Subsidiaries as to the

Count I LMRA claim because the Subsidiaries participated in the

ROD process in Washington, D.C.

     For these reasons, the court in its discretion finds that

it is fair, convenient, and altogether in the interests of

justice to transfer this case.    The court hereby GRANTS


22Subject matter jurisdiction exists “in the district in which
an arbitration was conducted.” Amalgamated Clothing & Textile
Workers Union, AFL-CIO, CLC v. Fed'n of Union Representatives,
664 F. Supp. 995, 996 (S.D.W. Va. 1987).

                                  63
defendants’ motion to transfer, and transfers the remaining

Count I LMRA claim in this case - and the now-consolidated

parallel Second WDPa Suit - to the District Court for the

District of Columbia.

III. Conclusion

     The court has ruled on the pending motions.    For the

reasons expressed herein, the only remaining claim in this case

is Claim 1) - the UMWA’s Count I LMRA § 301 claim against CONSOL

seeking confirmation of the Trustees’ ROD decision.

     Claim 1), UMWA’s Count I LMRA claim against CONSOL,

survives all challenges made in defendants’ motions to dismiss,

and thus remains pending in this case.

     Claim 2), UMWA’s Count I LMRA claim against the

Subsidiaries, survives defendants’ first-to-file challenge and

the Subsidiaries’ service of process challenge.    However, the

court does not have personal jurisdiction over the Subsidiaries,

and therefore all claims made in Count I against the

Subsidiaries must be DISMISSED for lack of personal

jurisdiction.

     Claim 3), Retiree-Plaintiffs’ Count I LMRA claim against

CONSOL, survives CONSOL’s venue, personal jurisdiction, subject

matter jurisdiction, and first-to-file challenges.    However,




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this claim must be DISMISSED because the Retiree-Plaintiffs do

not have statutory standing to bring an LMRA § 301 claim.

     Claim 4), Retiree-Plaintiffs’ Count I LMRA claim by the

Retiree-Plaintiffs against the Subsidiaries, survives

defendants’ first-to-file challenge and the Subsidiaries’

service of process challenge.    However, this claim must be

DISMISSED because the Retiree-Plaintiffs do not have statutory

standing to bring an LMRA § 301 claim, or, in the alternative,

because the court does not have personal jurisdiction over the

Subsidiaries as to this claim.

     Claim 5), UMWA’s Count II ERISA claim against CONSOL,

survives CONSOL’s motions to dismiss for improper venue and lack

of personal jurisdiction.    However, this claim must be DISMISSED

because the UMWA does not have standing to bring this claim.

     Claim 6), UMWA’s Count II ERISA claim against the

Subsidiaries, survives the Subsidiaries’ service of process

challenge.    However, this claim must be DISMISSED because the

UMWA does not have standing to bring this claim, or, in the

alternative, because it fails to state a valid claim under ERISA

§ 502(a)(3).

     Claim 7), Retiree-Plaintiffs’ Count II ERISA claim against

CONSOL, survives CONSOL’s venue and personal jurisdiction

challenges.    However, this claim must be DISMISSED because the

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Retiree-Plaintiffs lack Article III standing to bring this

claim.

     And claim 8),   Retiree-Plaintiffs’ Count II ERISA claim

against the Subsidiaries, survives the Subsidiaries’ service of

process challenge.   However, this claim must be DISMISSED

because the Retiree-Plaintiffs lack Article III standing to

bring this claim, or, in the alternative, because it fails to

state a valid claim under ERISA § 502(a)(3).

     Therefore, for the foregoing reasons, CONSOL’s motion to

dismiss is GRANTED IN PART and DENIED IN PART, the Subsidiaries’

first motion to dismiss is GRANTED IN PART and DENIED IN PART,

the Subsidiaries’ second motion to dismiss Count II is GRANTED,

plaintiffs’ motion to consolidate is GRANTED, and the

Subsidiaries’ motion to transfer Count I is GRANTED.

     This case, Int’l Union, United Mine Workers of Am. v.

Consol Energy, Inc., No. 1:16-cv-12506 (S.D.W. Va. filed Dec.

23, 2016), shall be the lead case among the consolidated cases.

     The court transfers the remaining claim pending in this

case – and all claims in the now-consolidated parallel Second

WDPa Suit, Helvetia Coal Co. v. UMWA, No. 1:18-cv-01095 (S.D.W.

Va. filed Oct. 31, 2017) – to the District Court for the

District of Columbia.




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     The Clerk is directed to send copies of this Memorandum

Opinion and Order to all counsel of record.

     IT IS SO ORDERED this 4th day of June, 2020.

                              Enter:


                             David A. Faber
                             Senior United States District Judge




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