5th Circuit Removes Judge Wingate From 2 Cases For Moving Slowly
A second case has been taken from U.S. District Judge Henry T. Wingate and given to another judge because of Wingate’s failure to rule on motions in a timely manner, which the state’s attorney general says is an “unfortunate pattern” with the judge.
The 5th Circuit U.S. Court of Appeals has denied Wingate’s request to keep a case the court ordered transferred to another judge. The case involves Mississippi suing executives from Texas-based KiOR and its primary investor, alleging they committed fraud to secure a state loan by intentionally misrepresenting the capability of technology that would produce crude oil from biomass.
Last month, the 5th Circuit ordered two cases filed by Mississippi Attorney General Jim Hood removed from Wingate, citing the judge’s failure to rule on pending motions. The other case was the long-running Hood v. Entergy lawsuit filed in 2008.
“This case has languished too long in the district court, with virtually no movement. A writ of mandamus seeking reassignment is the only viable option available to the state of Mississippi at this juncture,” Hood’s petition said.
Hood’s office didn’t respond to a request for comment about the 5th Circuit’s ruling.
Last week, the higher court directed Wingate to deliver the Entergy case to the chief judge of the Southern District of Mississippi for reassignment.
In the case against KiOR executives, the 5th Circuit also agreed with the request to remove it from Wingate. That case was filed in January 2015..
Wingate asked the court to withdraw its order and give him three more days to issue a ruling on outstanding motions.
Hood opposed Wingate’s request in a response to the 5th Circuit panel of three judges. He said Wingate’s willingness to issue a ruling came only from his petition to move it.
“This is an unfortunate pattern in Judge Wingate’s court,” Hood said in the court filing. “… It is truly regrettable that the plaintiff has been denied his just recovery for these several years by the lack of judicial diligence. Indeed, it was only after a mandamus petition had been filed that the district court took any action. This is not the first time such inexcusable delays have occurred in that court.”
The three-judge panel voted 2-1 to remove the KiOR case from Wingate.
Judges Grady Jolly and W. Eugene Davis voted to grant the request. Judge Leslie Southwick dissented.
Southwick said he believes the best course would have been to order Wingate to rule by a certain date.
The suit, originally filed in Hinds County Circuit Court, seeks unspecified compensatory and punitive damages. Listed as defendants are former KiOR CEO Fred Cannon, board of directors member Gary Whitlock, venture capital firm Khosla Ventures, firm founder Vinod Khosla and managing partner Samir Kaul.
KiOR executed in November 2010 a memorandum of understanding with the Mississippi Development Authority that allowed the agency to loan up to $75 million to the company to get its facility in Columbus operational. In return, KiOR had to spend a minimum of $500 million on land, equipment and buildings related to the project by the end of 2015. The biofuel maker was to create a minimum of 1,000 jobs.
That never happened and KiOR ceased operations in Columbus last year. The company filed for Chapter 11 bankruptcy protection in November after it defaulted on the state loan. Because the state did not have a mortgage on the loan, it’s possible KiOR’s final bankruptcy outcome will leave the state with none of the money it loaned the company.
Hood has been trying to get the case remanded from federal court to Hinds County Chancery Court or have it sent to bankruptcy court in Delaware.
Source: The Clarion-Ledger