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UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

PATRIOT COAL SALES LLC

)

)

Plaintiff,

)

)

v.

)

Case No. 2:12-cv-01808

)

KEYSTONE INDUSTRIES LLC

)

)

Defendant.

)

AMENDED COMPLAINT

COMES NOW Plaintiff, Patriot Coal Sales LLC, and for its Amended Complaint against

Defendant, Keystone Industries LLC, states the following:

The Parties

1. Patriot Coal Sales LLC (“Patriot”) is, and at all relevant times was, a limited

liability corporation organized and existing under the laws of the State of Delaware with its

principal place of business in St. Louis, Missouri. Patriot sells varying grades of coal mined by

affiliated entities.

Patriot’s only member is Patriot Coal Corporation, a corporation organized

and existing under the laws of the State of Delaware with its principal place of business in St.

Louis, Missouri.

2. Keystone Industries LLC (“Keystone”) is, and at all relevant times was, a limited

liability corporation organized and existing under the laws of Maryland with a principal place of

business in Fort Myers, Florida. Keystone’s members are all individuals residing in Florida.

Jurisdiction and Venue

3. For jurisdictional purposes, Patriot is a citizen of Delaware and Missouri and

Keystone is a citizen of Maryland and Florida. 28 U.S.C. § 1332(c)(1).

4.

This Court has jurisdiction over the subject matter of this action pursuant to 28

U.S.C. § 1332(a)(1) because the amount in controversy, exclusive of interest and costs, exceeds

$75,000, and this action is between citizens of different states.

5. This Court may properly exercise personal jurisdiction over Keystone because it

has sufficient minimum contacts with West Virginia, including entering into a contract in West

Virginia that was to be performed in West Virginia.

6. Venue is proper in this District because a substantial part of the events or

omissions giving rise to this claim occurred in this District. 28 U.S.C. § 1391(b)(2).

Keystone Breaches the Parties’ Contract

7. On or about December 7, 2011, Patriot and Keystone entered into a contract

pursuant to which Keystone agreed to purchase coal from Patriot (the “Coal Confirmation”). A

redacted copy of the Coal Confirmation is attached as Exhibit 1 hereto.

8. Pursuant to the Coal Confirmation, Keystone was to take delivery of, and pay for,

coal from Patriot upon certain specified terms and conditions during 2012.

Those terms and

conditions required Keystone to take monthly delivery of its total purchase obligation on a pro

rata basis.

9. It is Patriot’s understanding that Keystone intended to resell the Patriot coal to its

own buyer. Keystone’s obligations under the Coal Confirmation were not contingent, however,

upon Keystone identifying or contracting with a buyer nor are Keystone’s obligations contingent

upon the performance of its buyer.

10. Keystone has not taken or paid for any coal as it is obligated to do under the Coal

Confirmation.

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11. On May 11, 2012, Patriot sent a letter notifying Keystone that it was in breach

and default of the Coal Confirmation (the “Notice of Default”). A redacted copy of the Notice of

Default is attached as Exhibit 2 hereto.

The Notice of Default provided Keystone thirty (30)

days to cure its default under the Coal Confirmation.

12. As of the date of this Amended Complaint, Keystone has not cured its breach and

default of the Coal Confirmation. Keystone failed to take or pay for a single ton of coal as it is

obligated to do under the Coal Confirmation despite having contracted to take and pay for

hundreds of thousands of tons of coal by the date of this Amended Complaint.

13. By its words and actions, Keystone has repudiated the Coal Confirmation in its

entirety.

COUNT FOR BREACH OF CONTRACT

14. Keystone and Patriot entered into the Coal Confirmation. The Coal Confirmation

is a valid and enforceable contract.

15.

Both

Keystone

and

Patriot

had

mutual

consideration from, the Coal Confirmation.

obligations

under,

and

received

16. Patriot was willing and able to fully perform its obligations under the Coal

Confirmation and did in fact perform any and all obligations as they arose.

Any conditions

precedent to Keystone’s performance of the Coal Confirmation have occurred or otherwise been

satisfied.

17. Keystone breached the Coal Confirmation by failing to take delivery of and pay

for its coal obligation as provided for by the Coal Confirmation.

Keystone also breached the

Coal Confirmation by failing to cure its default under the Coal Confirmation.

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18. Patriot has been damaged by Keystone’s breach of the Coal Confirmation,

including but not limited to, the present value of the loss of sales to Keystone in the quantities

and prices specified under the Coal Confirmation for the entire duration of the contract.

WHEREFORE, Patriot prays for judgment in its favor and against Keystone:

(a) for

damages representing the present value of the loss of sales to Keystone in the quantities and

prices specified in the Coal Confirmation, in an amount to be determined at trial, but in any event

in excess of the jurisdictional minimum; (b) pre- and post-judgment interest; and (c) for such

further and additional relief as the Court deems just and proper.

270757v1

Respectfully submitted,

PATRIOT COAL SALES, LLC

By Counsel,

DINSMORE & SHOHL, LLP

/s/ W. Henry Jernigan, Jr.

W. Henry Jernigan, Jr. (WVSB #1884)

900 Lee Street, Suite 600

Huntington Square

Charleston, WV 25301

Telephone: (304) 357-0900

Fax: (304) 357-0919

THOMPSON COBURN LLP Roman P. Wuller Mark A. Mattingly One US Bank Plaza

St. Louis, Missouri 63101

Telephone: (314) 552-6000 Fax: (314) 552-7000 mmattingly@thompsoncoburn.com

Attorneys for Plaintiff

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