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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA GENE ANN MARIE BLYTHE, as Administratrix of the Estate of CHARLES RICHARD McINTIRE, deceased, Plaintiff, v. CONSOLIDATION COAL COMPANY and JOSEPH ONTKO, Defendants. MEMORANDUM OPINION AND ORDER GRANTING MOTION TO REMAND AND DENYING WITHOUT PREJUDICE MOTION TO DISMISS I. Procedural History Civil Action No. 5:12CV95 (STAMP)

The plaintiff, administratrix of the estate of her father, Charles Richard McIntire ("Mr. McIntire"), filed this civil action in the Circuit Court of Marshall County, West Virginia. The

complaint raises two counts of deliberate intent related to the Mr. McIntire's death on October 17, 2011. Count I is a claim for

deliberate intent against defendant Consolidation Coal Company ("Consol"), Mr. McIntire's former employer, and Count II is a claim for deliberate intent against defendant Joseph Ontko ("Ontko"), Mr. McIntire's supervisor on the day of his death. The defendants removed this civil action to this Court on the basis of diversity, pursuant to 28 U.S.C.

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