UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA PATRIOT COAL SALES LLC Plaintiff,

v. KEYSTONE INDUSTRIES LLC Defendant. ) ) ) ) ) ) ) ) )

Case No. 2:12-cv-01808

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.

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. Patriots 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.

liability corporation organized and existing under the laws of Maryland with a principal place of business in Fort Myers, Florida. Keystones 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).

Louis, Missouri. 2.

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

Keystone Industries LLC (Keystone) is, and at all relevant times was, a limited

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).

7.

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.

own buyer. Keystones obligations under the Coal Confirmation were not contingent, however, upon Keystone identifying or contracting with a buyer nor are Keystones obligations contingent upon the performance of its buyer. 10. Confirmation. Keystone has not taken or paid for any coal as it is obligated to do under the Coal

-2-

Keystone Breaches the Parties Contract

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

It is Patriots understanding that Keystone intended to resell the Patriot coal to its

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. entirety.

14.

is a valid and enforceable contract. 15.

consideration from, the Coal Confirmation. 16.

precedent to Keystones 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.

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

-3-

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

COUNT FOR BREACH OF CONTRACT

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

Both Keystone and Patriot had mutual obligations under, and received

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

18.

Patriot has been damaged by Keystones 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

By Counsel,
-4-

Respectfully submitted, PATRIOT COAL SALES, LLC

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 henry.jernigan@dinsmore.com 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