in Re CVR Energy, INC. and CVR Refining, LP

ACCEPTED

01-15-00715-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

8/21/2015 3:23:43 PM

CHRISTOPHER PRINE

CLERK

NO. 01-15-00715-CV

FILED IN

1st COURT OF APPEALS

HOUSTON, TEXAS

IN THE FIRST DISTRICT COURT OF APPEALS

8/21/2015 3:23:43 PM

HOUSTON, TEXAS CHRISTOPHER A. PRINE

Clerk

IN RE CVR ENERGY, INC. AND CVR REFINING, LP,

RELATORS

Original Proceeding

th

From the 268 Judicial District Court of Fort Bend County, Texas

Cause No. 2015-DCV-220330

The Honorable Brady G. Elliott, Presiding

PETITION FOR WRIT OF MANDAMUS

Phillip D. Sharp Lee M. Smithyman

State Bar No. 18118680 Kansas State Bar No. 09391

MARTIN, DISIERE, JEFFERSON & SMITHYMAN & ZAKOURA, CHARTERED

WISDOM, L.L.P. 750 Commerce Plaza II Building

808 Travis, 20th Floor 7400 West 110th Street

Houston, Texas 77002 Overland Park, Kansas 66210-2362

(713) 632-1700 – Telephone (913) 661-9800 – Telephone

(713) 222-0101 – Facsimile (913) 661-9861 – Facsimile

sharp@mdjwlaw.com lee@smizak-law.com

Application for pro hac admission

pending

ORAL ARGUMENT REQUESTED

IDENTITY OF PARTIES AND COUNSEL

Relators/Defendants:

CVR Energy, Inc. and CVR Refining, LP

In the trial court, the relators/defendants are represented by the following

attorneys:

Phillip D. Sharp

State Bar No. 18118680

MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P.

808 Travis, 20th Floor

Houston, Texas 77002

(713) 632-1700 – Telephone

(713) 222-0101 – Facsimile

sharp@mdjwlaw.com

Lee M. Smithyman

Kansas State Bar No. 09391

SMITHYMAN & ZAKOURA, CHARTERED

750 Commerce Plaza II Building

7400 West 110th Street

Overland Park, Kansas 66210-2362

(913) 661-9800 – Telephone

(913) 661-9861 – Facsimile

lee@smizak-law.com

In this original proceeding, the relators/defendants are represented by the

following attorneys:

Mr. Sharp and Mr. Smithyman

i

Real Parties In Interest/Plaintiffs:

Donald R. Collier, Jennifer J. Collier, Dale A. Niemeyer, and Wendy

Niemeyer

In the trial court the real parties in interest/plaintiffs are represented by the

following attorneys:

Mr. Gary M. Riebschlager

State Bar No. 16902200

THE RIEBSCHLAGER LAW FIRM, PC

801 Congress, Suite 250

Houston, Texas 77002

Telephone: (713) 980-5300

Facsimile: (713) 583-5915

gary@riebschlagerlaw.com

Mr. Richard L. Tate

State Bar No. 19664460

Ms. Kristin Reis

State Bar No. 24060478

TATE, MOERER & KING, LLP

206 South 2nd Street

Richmond, Texas 77469

Telephone: (281) 341-0077

Facsimile: (281) 341-1003

rltate@tate-law.com

kreis@tate-law.com

ii

Respondent:

The Honorable Brady G. Elliott

268TH JUDICIAL DISTRICT COURT

FORT BEND COUNTY, TEXAS

1422 Eugene Heimann Circle

Room 30250, Courtroom 3D

Richmond, Texas 77469

Telephone: (281) 341-8610

Facsimile: unknown

E-mail: unknown

iii

TABLE OF CONTENTS

PAGE

IDENTITY OF PARTIES AND COUNSEL ............................................................i

TABLE OF CONTENTS .........................................................................................iv

TABLE OF AUTHORITIES ...................................................................................vi

STATEMENT OF THE CASE ................................................................................ix

STATEMENT REGARDING ORAL ARGUMENT ..............................................x

STATEMENT OF JURISDICTION.........................................................................x

STATEMENT OF FACTS .......................................................................................1

SUMMARY OF THE ARGUMENT .......................................................................6

ARGUMENT ............................................................................................................7

I. THE STANDARD FOR MANDAMUS RELIEF ON FORUM NON

CONVENIENS DECISIONS. ........................................................................7

II. THE DISTRICT COURT ABUSED ITS DISCRETION IN

DENYING RELATORS’ MOTION TO DISMISS FOR FORUM

NON CONVENIENS. ..................................................................................10

A. Consideration of Section 71.051 (b) Factors. ....................................12

1. Kansas is an Alternate Forum in Which the Claim or

Action May be Tried. ...............................................................12

2. Kansas is a Forum Which Provides an Adequate

Remedy. ...................................................................................13

3. Maintenance of the Claim or Action in Texas Would

Work a Substantial Injustice. ...................................................14

4. Kansas Can Exercise Jurisdiction Over Properly-Joined

Defendant. ................................................................................18

5. Balance of Private and Public Interests. ..................................18

iv

III. KANSAS LAW APPLIES TO THIS ACCIDENT. .....................................21

A. Restatement General Factors. .............................................................22

1. Needs of the Interstate and International Systems. ..................23

2. Relevant Policies of the Forum. ...............................................23

3. Relevant Policies and Interests of Other Interested States. .....24

4. Protection of Justified Expectations. .......................................24

6. Certainty, Predictability, and Uniformity of Result.................25

7. Ease in Determination and Application of the Law to be

Applied. ....................................................................................26

B. Restatement Specific Factors. ............................................................26

C. The Fact that Kansas Law is Different is Irrelevant. .........................27

IV. PLAINTIFFS' ARGUMENT THAT DEFENDANTS' NEGLIGENCE

OCCURRED IN TEXAS DOES NOT OVERCOME THE SECTION

71.051 FACTORS. .......................................................................................28

V. CONCLUSION & PRAYER........................................................................32

CERTIFICATION ..................................................................................................33

CERTIFICATE OF COMPLIANCE ......................................................................34

CERTIFICATE OF SERVICE ...............................................................................34

APPENDICES & RELATOR’S RECORD

v

TABLE OF AUTHORITIES

PAGE

Cases

Berg v. AMF, Inc.,

29 S.W.3d 212 (Tex. App.—Houston [14th Dist.] 2000, no pet.) ................13, 28

Coca-Cola Co. v. Harmar Bottling Co.,

218 S.W.3d 671 (Tex. 2006) ...........................................................................7, 21

Duncan v. Perry Packing Co.,

162 Kan. 79 P.2d 78 (1946) ................................................................................23

Fugit v. United Beechcraft, Inc.,

222 Kan. 312, 564 P.2d 521 (1977) ....................................................................20

Gomez de Hernandez v. Bridgestone/Firestone N. Am. Tire, L.L.C.,

204 S.W .3d 473 (Tex. App.—Corpus Christi 2006, pet. denied) ......................28

Gulf Oil Corp. v. Gilbert,

330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947) .............................................16

Gutierrez v. Collins,

583 S.W.2d 312 (Tex. 1979) .........................................................................21, 26

Hollingsworth v. Fehrs Equip. Co. of K.C.,

240 Kan. 398, 729 P.2d 1214 (1986) ..................................................................20

Hughes Wood Prods. v. Wagner,

18 S.W.3d 202, 205-206 (Tex. 2000)......................................................20, 22, 25

In re Arthur Andersen LLP,

121 S.W.3d 471 (Tex. App.—Houston [14th Dist.] 2003,

orig. proceeding) ...................................................................................................8

In re BPZ Res.,

359 S.W.3d 866 (Tex. App.—Houston [14th Dist.] 2012,

orig. proceeding) ......................................................................................... passim

vi

In re Dauajare-Johnson,

No. 14-14-00256-CV,

2014 WL 3401094 (Tex. App.—Houston [14th Dist.] July 10, 2014,

orig. proceeding) .....................................................................................12, 19, 26

In re Ensco Offshore Int’l Co.,

311 S.W.3d 921 (Tex. 2010) ....................................................................... passim

In re Gen. Elec. Co.,

271 S.W.3d 681 (Tex. 2008) ....................................................................... passim

In re Mantle Oil & Gas, LLC,

426 S.W.3d 182 (Tex. App.—Houston [1st Dist.] 2012,

orig. proceeding) ......................................................................................... passim

In re Omega Protein, Inc.,

288 S.W.3d 17 (Tex. App.—Houston [1st Dist.] 2009, no pet.) ..................10, 17

In re Pirelli Tire, L.L.C.,

247 S.W.3d 670 (Tex. 2007) ....................................................................... passim

In re Team Rocket, L.P.,

256 S.W.3d 257 (Tex. 2008) .................................................................................8

Lalila v. Parker Drilling Co.,

No. 01-07-00281-CV, 2009 WL 618248

(Tex. App.—Houston [1st Dist.] Mar. 12, 2009, no pet.) ...................................13

Liberty Mut. Ins. Co. v. Transit Mix Concrete & Materials Co,

06-12-00117-CV, 2013 WL 3329026

(Tex. App.—Texarkana, Oct. 18, 2013, pet. denied)..............................13, 26, 27

Quixtar, Inc. v. Signature Mgmt. Team, LLC,

315 S.W.3d 28 (Tex. 2010) .................................................................................17

Sacks v. Four Seasons Hotel, Ltd.,

No. 5:04CV73, 2006 WL 783441 (E.D. Tex. Mar. 24, 2006) ............................23

Sammons & Berry P.C. v. Nat'l Indem. Co.,

No. 14-13-00070-CV, 2014 WL 3400713

(Tex. App.—Houston [14th Dist.] July 10, 2014, no pet.) .....................14, 19, 28

vii

Schippers v. Mazak Props., Inc.,

350 S.W.3d 294 (Tex. App.—San Antonio 2011, pet denied) .....................14, 16

Torrington v. Stutzman,

46 S.W.3d 829 (Tex. 2000) .................................................................................21

Vinmar Trade Fin., Ltd. v. Util. Trailers de Mexico,

336 S.W.3d 664 (Tex. App.—Houston [1st Dist.] 2010, no pet.) ....13, 19, 21, 26

Zermeno v. McDonnell Douglas Corp.,

246 F. Supp. 2d 646 (S.D. Tex. 2003) ................................................................21

Statutes

K.S.A. § 44-501 ........................................................................................................2

K.S.A. § 44-501b(d)..........................................................................................20, 23

K.S.A. § 60-258a.....................................................................................................14

K.S.A. § 60-513a(4) ................................................................................................14

TEX. CIV. PRAC. & REM. CODE § 71.051......................................................... passim

TEX. GOV'T CODE § 22.221(b) ...................................................................................x

Other Authorities

P.I.K.4th § 171.02 ...................................................................................................14

RESTATEMENT (SECOND) CONFLICT OF LAWS § 145 .........................................22, 26

RESTATEMENT (SECOND) CONFLICT OF LAWS § 6 ...................................................22

TEX. CONST. art. V § 6 ..............................................................................................x

Rules

TEX. R. CIV. P. 176.3(a) ..........................................................................................15

TEX. R. CIV. P. 52 ......................................................................................................x

viii

STATEMENT OF THE CASE

Relators' Petition for a Writ of Mandamus addresses Judge Elliott's denial of

a motion to dismiss for forum non conveniens pursuant to Section 71.051 of the

Texas Civil Practice and Remedies Code in the 268th Judicial District Court of

Fort Bend County, Texas.

Real Parties in Interest are the plaintiffs in a Fort Bend County civil suit for

damages sustained by Donald Collier and Dale Niemeyer in a Coffeyville, Kansas

refinery fire, caused by a pump seal leak, during their Kansas employment with

Coffeyville Resources Refining & Marketing, LLC (“CRRM”). Relators, who are

the named Defendants, are parent companies with an equity interest in CRRM.

The Respondent is the Honorable Brady G. Elliott.

Plaintiffs' Original Petition was filed on January 12, 2015; service was

obtained on May 18, 2015. Relators filed their Motion to Dismiss for forum non

conveniens on June 1, 2015 because:

(1) virtually all material witnesses and evidence regarding the

accident are located in Kansas;

(2) Kansas law applies to the Kansas accident; and

(3) the Plaintiffs reside in Independence, Kansas and the adjacent

South Coffeyville, Oklahoma.

Judge Elliott denied said Motion on August 7, 2015.

ix

STATEMENT REGARDING ORAL ARGUMENT

The relators respectfully suggest that the Court should grant oral argument.

This case requires detailed analysis of the Texas forum non conveniens statute, the

facts, and Kansas law. Oral argument will provide the Court helpful elaboration on

the issues, which are detailed and particular.

STATEMENT OF JURISDICTION

This Court has jurisdiction to issue a writ of mandamus in this case under

Article V, Section 6 of the Texas Constitution, Section 22.221(b) of the Texas

Government Code, and Rule 52 of the Texas Rules of Appellate Procedure.

ISSUE PRESENTED

Did the district court abuse its discretion by denying a motion to dismiss for

forum non conveniens where the evidence established (1) the real parties in interest

are residents of Kansas and Oklahoma, (2) the real parties in interest were injured

in a fire occurring in Kansas during the course and scope of their employment in a

Kansas refinery, and (3) virtually all witnesses and evidence surrounding the cause

of the fire, the events occurring during and after the fire, and damages are located

in Kansas and Oklahoma, outside subpoena range of the Fort Bend County, Texas

trial court.

x

STATEMENT OF FACTS

1. Real Parties in Interest/Plaintiffs Donald R. Collier and Jennifer J.

Collier are individuals who reside in Independence, Kansas. RR Tab 4 at 1.1

2. Real Parties In Interest/Plaintiffs Dale A. Niemeyer and Wendy

Niemeyer are individuals who reside in South Coffeyville, Oklahoma, which is

immediately adjacent to Coffeyville, Kansas. RR Tab 4 at 1.

3. The Plaintiffs filed their Original Petition on January 12, 2015. RR

Tab 4 at 1.

4. The Relator Defendants, CVR Energy, Inc. and CVR Refining, LP

(collectively, “CVR”), were served on or about May 18, 2015. RR Tab 3 at 2.

5. The Plaintiffs' causes of action address work injuries sustained in an

accident by Mr. Collier and Mr. Niemeyer, which occurred in the Coffeyville

Refinery, located in Coffeyville, Kansas. RR Tab 4 at 2-3.

6. Mr. Collier and Mr. Niemeyer are employees of Coffeyville

Resources Refining & Marketing, LLC (“CRRM”), which is a subsidiary of these

Relators. RR Tab 4 at 3.

1

For ease of reference, the Appendix and Relator’s Record is cited as “RR Tab [Number] at

[Page Number].”

1

7. CRRM is alleged to be a wholly-owned subsidiary of CVR. RR Tab 4

at 3.2

8. Mr. Collier and Mr. Niemeyer received workers' compensation

benefits pursuant to the Kansas Workers' Compensation Act, K.S.A. 44-501, et.

seq. RR Tab 7 at Ex. 1.

9. Plaintiffs allege that the fire resulted when “a critical leak occurred on

a pump in the Isometric Unit of the Refinery.” RR Tab 4 at 3.

10. Plaintiffs allege that because CRRM is a wholly-owned subsidiary of

CVR, CVR is liable for the torts of CRRM. 3 RR Tab 4 at 3-4.

11. Plaintiffs allege that CVR committed unspecified acts of negligence.

Paragraph 19 of their Petition states:

On the occasion in question, CVR, by and through their officers,

employees, agents and representatives, independently committed acts

of omission and commission which collectively and severally

constitute negligence that proximately caused the deaths of plaintiffs'

decedents and damages to Plaintiffs. CVR failed. CVR's failure is

negligence as defined above.4

2

That allegation is inaccurate, CRRM is a wholly-owned subsidiary of CVR Refining, LP. CVR

Energy, Inc. owns the General Partner and 66% of the Limited Partner units of CVR Refining,

LP; hence, CRRM is not a wholly-owned subsidiary of CVR Energy, Inc. RR Tab 7 at Ex. 1.

3

See fn. 2 above. Independent of the factual inaccuracy, wholly-owned status does not result in

the liability of a parent or owner as a matter of law. Abdel-Fattah v. Pepsico, Inc., 948 S.W.2d

381, 384 (Tex. App.-Houston [14th Dist.] 1997, no writ).

4

The allegation is inaccurate; neither Mr. Collier nor Mr. Niemeyer died in the fire and no

wrongful death case is being pursued. See RR Tab 4.

2

12. Plaintiffs also allege that CVR committed acts of gross negligence,

without further specification. RR Tab 4 at 4.

Defendants' acts and omission are of such a character as to lead to the

conclusion that they not only constitute negligence, but rise to the

level of gross negligence/malice. Defendants acted with conscious

indifference to the rights, safety and welfare of Donald R. Collier and

Dale A. Niemeyer, and proximately caused their injuries through the

enumerated acts or omissions.

RR Tab 4 at 4.

13. On June 1, 2015, twelve days after service upon them, Relators filed

their motion to dismiss for forum non conveniens pursuant to section 71.051 of the

Texas Civil Practice and Remedies Code. RR Tab 6.

14. On July 6, 2015, Relators responded to Plaintiffs' Rule 194 Request

for Disclosure by identifying 34 potential witnesses with knowledge of the relevant

facts associated with the accidental fire. RR Tab 8. Of those witnesses identified:

(i) Twenty-nine are residents of Kansas,

(ii) Three are residents of Oklahoma or Missouri,

(iii) Two (one being an expert) are residents of Texas.

RR Tab 8 at Ex. 1 at 4-10.

15. Relators' Rule 194 disclosures identified CRRM, which owns the

refinery located in Coffeyville, Kansas, as a responsible third party (“RTP”). RR

Tab 8 at Ex. 1 at 11.

3

16. While emergency medical technicians (EMTs), police officers and

firemen have not yet been identified, all emergency responders to the Kansas fire

are likely from the Coffeyville, Kansas area. To the best of Relators' belief, all

healthcare providers are located in Kansas, or adjacent areas of Oklahoma and

Missouri. To Relators' knowledge, there are no Texas healthcare providers

associated with the care and treatment of Mr. Collier or Mr. Niemeyer.

17. On August 7, 2015, the date the motion to dismiss was orally argued,

the Plaintiffs filed a Supplemental Petition to also allege:

In addition to the allegations previously pled, Plaintiffs allege that

Defendants were independently negligent in the performance of their

duties under the Management Services Agreement proximately

causing Plaintiffs damages and injuries as previously pled.

RR Tab 10 at 1.5

18. By the terms of that Services Agreement (RR Tab 11), the

Relators agreed that:

(i.) They were amenable to legal proceedings brought in the

State of Kansas (RR Tab 11 at ¶ 10.08);

(ii) The agreement would be governed by Kansas law (RR

Tab 11 at ¶ 10.07); and

(iii) The agreement’s provisions would create no rights for

alleged third party beneficiaries (RR Tab 11 at ¶ 10.05).

5

The referenced Services Agreement is found at RR Tab 11.

4

19. Judge Elliott denied Relators’ motion to dismiss for forum non

conveniens on the record at the conclusion of August 7 oral argument. RR Tab 2

at 33 (“On the issue that I have to decide on today, I’m going to deny your

motion.”).

20. CVR Energy, Inc. and CVR Refining, LP, are in good standing with

and registered to do business in Kansas. RR Tab 8 at Ex. 1, ¶¶ 8-9. Both are

amenable to service of process through their registered agent in Kansas. See id.

21. The pump which experienced a seal failure is estimated to weigh

1,000 pounds and is stored in Coffeyville, Kansas. RR Tab 8 at Ex. 1, ¶¶ 8-9.

5

SUMMARY OF THE ARGUMENT

The district court abused its discretion by denying the relators’ motion to

dismiss for forum non conveniens where the evidence presented to the district

court established that Texas is an inconvenient forum to try the underlying lawsuit.

Specifically, as required by Section 71.051 of the Civil Practice and Remedies

Code, the evidence established (1) Kansas is an alternate forum in which the

underlying lawsuit may be tried; (2) Kansas law provides an adequate remedy to

the real parties in interest; (3) that maintenance of the lawsuit in Texas would work

a substantial injustice to the relators as witnesses necessary to the defense are

outside the district court’s subpoena power; (4) Kansas can exercise jurisdiction

over all the defendants in the underlying lawsuit, as well as the designated

responsible third party; and (5) that dismissal of the underlying lawsuit in order to

allow the case to proceed in Kansas would not result in unreasonable duplication or

proliferation of litigation. See Tex. Civ. Prac. & Rem. Code § 71.051.

The balance of private interests of the parties, as well as the public interest

of Texas and Kansas favor the dismissal of the underlying lawsuit in Texas in

order to allow the Kansas judicial system to assert jurisdiction. Texas has no

public interest in taxing its citizens and judicial system to adjudicate claims of

Kansas and Oklahoma citizens injured in a fire occurring in Coffeyville, Kansas.

Moreover, this case concerns novel issues of Kansas law, specifically, whether

6

Kansas workers’ compensation law bars employees of a subsidiary entity from

suing the subsidiary’s parents. Comity requires dismissal of the Texas action to

allow the Kansas judicial system to define the scope of its own laws. See Coca-

Cola Co. v. Harmar Bottling Co., 218 S.W.3d 671, 680-82 (Tex. 2006).

The evidence simply does not support the district court’s conclusion that

Texas is a proper and convenient forum. The Court should direct the district court

to vacate its order denying the relators’ motion to dismiss for forum non

conveniens and instruct it to dismiss the underlying lawsuit in order to allow the

suit to proceed in the courts of Kansas. See Tex. Civ. Prac. & Rem. Code

§ 71.051.

ARGUMENT

I. THE STANDARD FOR MANDAMUS RELIEF ON FORUM NON

CONVENIENS DECISIONS.

A district court’s decision to deny a motion to dismiss for forum non

conveniens is reviewed for abuse of discretion. In re Gen. Elec. Co., 271 S.W.3d

681, 685 (Tex. 2008). The district court abuses its discretion if its decision is

arbitrary, unreasonable, or without reference to guiding principles. In re Pirelli

Tire, L.L.C., 247 S.W.3d 670, 676 (Tex. 2007). In applying the forum non

conveniens factors of section 71.051 of the Texas Civil Practice and Remedies

Code, “a trial court has no discretion in determining what the law is or in applying

the law to the particular facts.” In re Mantle Oil & Gas, LLC, 426 S.W.3d 182,

7

187 (Tex. App.—Houston [1st Dist.] 2012, orig. proceeding); In re Brokers

Logistics, Ltd., 320 S.W.3d 402, 405 (Tex. App.—El Paso 2010, orig. proceeding)

(holding that a failure by the district court to analyze or apply the law correctly

constitutes an abuse of discretion); see also In re Arthur Andersen LLP, 121

S.W.3d 471, 476 (Tex. App.—Houston [14th Dist.] 2003, orig. proceeding) (“[A]s

to legal issues, an error amounting to an abuse of discretion can be as simple as

misinterpreting or misapplying the law.”).

Mandamus relief is appropriate to remedy an improper denial of a motion to

dismiss for forum non conveniens. See In re Ensco Offshore Int’l Co., 311 S.W.3d

921, 923, 929 (Tex. 2010); In re Mantle Oil & Gas, 426 S.W.3d at 187; In re

Omega Protein, Inc., 288 S.W.3d 17, 21 (Tex. App.—Houston [1st Dist.] 2009, no

pet.). Indeed, the Supreme Court specifically recognizes that “[a]n adequate

remedy by appeal does not exist when a motion to dismiss for forum non

conveniens is erroneously denied.” In re Gen. Elec. Co., 271 S.W.3d at 685.

Mandamus relief in the present situation will “spare litigants and the public

the time and money utterly wasted enduring eventual reversal of improperly

conducted proceedings.” In re Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex.

2008). The benefits of mandamus review clearly outweigh the detriments. Here,

the grant of mandamus can prevent this Kansas based dispute, which is governed

by Kansas law, from proceeding in a Texas forum five hundred miles from the

8

location of the witnesses and evidence. Mandamus relief will spare the litigants

and the State of Texas from the waste of time and money preceding an eventual

reversal for improperly conducted proceedings. The judiciary and citizenry of

Texas should not be burdened to resolve a dispute involving a Kansas accident to

Kansas workers, governed by Kansas law, for which Kansas evidence is required.

Mandamus is an appropriate remedy where, as here, a district court abuses

its discretion in denying a motion to dismiss for forum non conveniens. See In re

Ensco Offshore Int’l Co., 311 S.W.3d 921, 929 (Tex. 2010) (granting mandamus,

despite defendants’ Dallas offices, where Australian citizen employed by

Australian company suffered fatal accident on drilling rig in Singapore waters); In

re Pirelli Tire, L.L.C., 247 S.W.3d 670, 676 (Tex. 2007) (granting mandamus in

Texas suit by Mexican citizens as survivors of Mexican citizen who died in

rollover accident on Mexican highway); In re Gen. Elec. Co., 271 S.W.3d 681, 694

(Tex. 2008) (granting mandamus where Maine citizen injured from asbestos

exposure at Maine jobsite filed suit against Texas companies that manufactured or

distributed asbestos); In re BPZ Res., 359 S.W.3d 866, 881 (Tex. App.—Houston

[14th Dist.] 2012, orig. proceeding (granting mandamus where Peruvian oil tanker

exploded off Peruvian coast, despite fact that Texas corporations were parents of

Peruvian company that owned oil production platform); In re Mantle Oil & Gas,

LLC, 426 S.W.3d 182, 187 (Tex. App.—Houston [1st Dist.] 2012, orig.

9

proceeding), (granting mandamus where Louisiana residents injured by a

Louisiana oil well blowout sued the Texas oil well operator in Texas); In re Omega

Protein, Inc., 288 S.W.3d 17, 21 (Tex. App.—Houston [1st Dist.] 2009, no pet.)

(“We hold that an analysis incorporating the Gulf Oil factors strongly favors a

Virginia forum, where the plaintiff and the witnesses live, the documents are

housed, and the fishing vessel alleged to be unseaworthy docks.”).

II. THE DISTRICT COURT ABUSED ITS DISCRETION IN DENYING

RELATORS’ MOTION TO DISMISS FOR FORUM NON

CONVENIENS.

Upon receipt of a motion to dismiss due to forum non conveniens, the

district court must evaluate and analyze the section 71.051 factors in order to

determine whether to stay or dismiss the action. The forum non conveniens statute

does not place the burden of proof on either party. In re Ensco Offshore Int'l Co.,

311 S.W.3d at 927. To the extent evidence is necessary to support a party's

position, the trial court must base its decision on the greater weight of the

evidence. In re Gen. Elec. Co., 271 S.W.3d at 687. If the court determines that in

the interest of justice and for the convenience of the parties, the plaintiff's claim

would be more properly heard in a forum outside the state, the statute instructs that

“the court shall decline to exercise jurisdiction under the doctrine of forum non

conveniens and shall stay or dismiss the claim or action." Tex. Civ. Prac. & Rem.

Code § 71.051(b) (emphasis supplied).

10

Section 71.051(b) of the Texas Civil Practice & Remedies Code sets forth

the factors relevant to the inconvenient forum analysis, providing:

In determining whether to grant a motion to stay or dismiss an action

under the doctrine of forum non conveniens, the court shall consider

whether:

(1) an alternate forum exists in which the claim or action

may be tried;

(2) an alternative forum provides an adequate remedy;

(3) maintenance of the claim or action in the courts of this

state would work a substantial injustice to the moving

party;

(4) the alternate forum, as a result of the submission of the

parties or otherwise, can exercise jurisdiction over all the

defendants properly joined to the plaintiff's claim;

(5) the balance of the private interests of the parties and the

public interest of the state predominate in favor of the

claim or action being brought in an alternate forum,

which shall include consideration of the extent to which

an injury or death resulted from acts or omissions that

occurred in this state; and

(6) the stay or dismissal would not result in unreasonable

duplication or proliferation of litigation.

Tex. Civ. Prac. & Rem. Code § 71.051(b).

The statute further provides:

The court shall dismiss a claim under Subsection (b) if the court finds

by a preponderance of the evidence that a party was joined solely for

the purpose of obtaining or maintaining jurisdiction in this state and

the party's claim would be more properly heard in a forum outside this

state.

11

Tex. Civ. Prac. & Rem. Code § 71.051(e) (emphasis supplied.). As noted by the

Texas Supreme Court: “The word ‘shall’ in the statute ‘requires dismissal of the

claim or action if the statutory factors weigh in favor of the claim or action being

more properly heard in a forum outside of Texas.’” In re Ensco Offshore Int'l Co.,

311 S.W.3d 921, 924 (Tex. 2010) (quoting In re Gen. Elec., 271 S.W.3d at 686.

A. Consideration of Section 71.051 (b) Factors.

Consideration of the section 71.051 factors reflects that Kansas is clearly an

appropriate and superior forum to resolve the issues presented by the underlying

litigation.

1. Kansas is an Alternate Forum in Which the Claim or

Action May be Tried.

“An alternate forum is one where the defendant is amenable to process.” In

re Ensco Offshore Int'l Co at 311 S.W.3d at 924; In re Gen. Elec. Co., 271 S.W.3d

at 687. A alternative forum is available when the entire case and all the parties can

come within the jurisdiction of that forum. Vinmar Trade Fin. Ltd., 336 S.W.3d at

674; In re Dauajare-Johnson, No. 14-14-00256-CV, 2014 WL 3401094 (Tex.

App.—Houston [14th Dist.] July 10, 2014, orig. proceeding). CVR Energy, Inc.

and CVR Refining, LP are registered to do business in Kansas and doing business

in Kansas. See RR Tab 8 at Ex 1. Thus, each Relator has a registered agent

amenable to process in the State of Kansas. See id.

12

2. Kansas is a Forum Which Provides an Adequate Remedy.

“An alternative forum is inadequate if the remedies that it offers are so

unsatisfactory that they really comprise no remedy at all.” In re Ensco, 311

S.W.3d at 924; In re Gen. Elec., 271 S.W.3d at 688; In re Mantle, 426 S.W.3d at

189. "That the substantive law of alternative forum may be less favorable to the

plaintiff is entitled to little, if any, weight." In re Pirelli Tire, 247 S.W.3d 670, at

678 (Tex. 2007). "An alternative forum is adequate if the parties will not be

deprived of all remedies or treated unfairly, even though they may not enjoy the

same benefits as they might receive in an American court." Vinmar Trade Fin.,

Ltd. v. Util. Trailers de Mexico, 336 S.W.3d 664, 674 (Tex. App.—Houston [1st

Dist.] 2010, no pet.).

In the recent past, Texas appellate courts have determined the following

forums provide adequate remedies: Mexico (Id.), Peru (In re BPZ Res., 359

S.W.3d at 879), Australia (In re Ensco, supra), Canada (Berg v. AMF, Inc., 29

S.W.3d 212, 217 (Tex. App.—Houston [14th Dist.] 2000, no pet.)), Bangladesh

(Lalila v. Parker Drilling Co., No. 01-07-00281-CV, 2009 WL 618248 (Tex.

App.—Houston [1st Dist.] Mar. 12, 2009, no pet.)), Louisiana (In re Mantle,

supra), Arkansas (Liberty Mut. Ins. Co. v. Transit Mix Concrete & Materials Co,

06-12-00117-CV, 2013 WL 3329026 at *10 (Tex. App.—Texarkana, Oct. 18,

2013, pet. denied)), Florida (Schippers v. Mazak Properties, Inc., 350 S.W.3d 294,

13

298 (Tex. App.—San Antonio 2011, pet denied)), and New Mexico (Sammons &

Berry P.C. v. Nat'l Indem. Co., No. 14-13-00070-CV, 2014 WL 3400713, at *5

(Tex. App.—Houston [14th Dist.] July 10, 2014, no pet.)).

Kansas has a comparative negligence statute similar to that of Texas. See

K.S.A. § 60-258a (RR Tab 13). Kansas has a two-year tort statute of limitations,

similar to Texas, for personal injuries. K.S.A. § 60-513a(4) (RR Tab 14). Kansas

permits full recovery of economic damages for bodily injury. See P.I.K.4th §

171.02 (RR Tab 15). As a sister state to Texas, Kansas provides similar causes of

action and remedies to its citizenry. Obviously, a Kansas forum will provide an

adequate remedy. See In re Ensco, 311 S.W.3d at 924

3. Maintenance of the Claim or Action in Texas Would Work

a Substantial Injustice.

The Real Parties in Interest premise jurisdiction and venue in Fort Bend

County upon the fact that the CVR Defendants operate a joint office in Sugar

Land, Texas. RR Tab 4 at 3. However, the location of this office is the only real

connection with Texas. As reflected in the Statement of Facts, virtually all

identified witnesses to the accident are residents of Coffeyville, Kansas, or South

Coffeyville, Oklahoma. 6 Common sense indicates that virtually all emergency

responders and healthcare providers are also from Kansas or Oklahoma. Only two

6

Plaintiffs identified four or five of Relators' employees who allegedly made management

decisions in Texas. These allegations are addressed in Section IV.

14

of the identified witnesses could be compelled to testify by Texas process: one

Sugar Land office worker investigated the incident and an identified expert

witness. See RR Tab 8. The healthcare providers attending to Mr. Collier and

Mr. Neimeyer would all reside in the Kansas and Oklahoma areas.

Texas Rule of Civil Procedure 176.3(a) states:

A person may not be required by subpoena to appear or produce

documents or other things in a county that is more than 150 miles

from where the person resides or is served.

The Texas Supreme Court has held that “the lack of compulsory process in Texas

for reaching the great majority of witnesses would be substantially unjust.” In re

Ensco, 311 S.W.3d at 921; In re Gen. Elec., 271 S.W.3d at 689. It is undisputed,

and indisputable, that witnesses residing in Kansas and Oklahoma are more than

150 miles from Fort Bend County, Texas. Accordingly, virtually none of the fact

witnesses can be compelled to testify. See Tex. R. Civ. P. 176.3(a). In General

Electric, the Texas Supreme Court emphasized that trial should proceed where the

witnesses and evidence are located:

. . . [T]he practical problems of trying a personal injury case hundreds

of miles from the scene of the occurrence, the place where the lay

witnesses reside, and where most other evidence is located is

manifest. . . . Reasonable access to witnesses and evidence is a

fundamental need in regard to any trial . . .

15

In re Gen. Elec., 271 S.W.3d at 691-92. See also In re BPZ Res., 359 S.W.3d at

879; Schippers v. Mazak Props., Inc., 350 S.W. 3d 294, 296 (Tex. App.—San

Antonio 2011, pet. denied).

In Judge Elliott's decision commentary, he noted that the witnesses of

Kansas could be available to his Court through deposition presentations, video

depositions, telephone testimony and the like. App Tab 2 at 9:24 - 12:20.

However, the U.S. Supreme Court has long instructed that “to fix the place of trial

at a point where litigants cannot compel personal attendance and may be forced to

try their case on deposition, is to create a condition not satisfactory to court, jury or

most litigants.” See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 511, 67 S.Ct. 839, 91

L.Ed. 1055 (1947). Moreover, while the availability of such witnesses remains

speculative, trial presentation would certainly be impaired by days of reading

depositions, presenting videotape depositions or telephone testimony. Video

depositions have been commonly available for at least ten years. The

“substantially unjust” determinations of the Texas Supreme Court in Ensco (2010)

and General Electric (2008) were made at a time when video depositions were

established procedures.

This court may take judicial notice that Coffeyville is approximately 500

miles from Fort Bend County, Texas. Live testimony would require that each

16

witness travel more than 500 miles to testify. Travel and lodging costs would be

prohibitive.

Section 71.051 does not contain any language placing the burden of proof on

a particular party; instead, section 71.051 simply requires the trial court to consider

the factors, and it must do so to the extent the factors apply. In re Mantle Oil &

Gas, LLC, 426 S.W.3d at 188. To the extent necessary, the trial court must base its

decision on the weight of the evidence, and it is entitled to “take into account the

presence or absence of evidence as to some issue or position of a party.” Id.

Clearly, the weight of the evidence regarding compulsory witness testimony

favors dismissal in favor of Kansas. In re Gen. Elec. Co., 271 S.W.3d at 689

(“requiring parties to litigate a case . . . in Texas until it becomes clear that it is

‘impossible’ to defend the case due to unavailability of evidence and fact witnesses

because they are beyond the reach of compulsory process is a waste of private and

public resources.”).

Plaintiffs are not Texas residents. RR Tab 4 at 1. The forum non

conveniens doctrine “generally affords substantially less deference to a non

resident's forum choice.” In re Mantle, 426 S.W.3d at 188; In re Pirelli Tire, 247

S.W.3d at 675; In re Omega Protein, Inc., 288 S.W.3d at 21; Quixtar, Inc. v.

Signature Mgmt. Team, LLC, 315 S.W.3d 28, 31 (Tex. 2010). “Dismissal on

forum non conveniens grounds is appropriate where sufficient contacts between

17

the defendant and the forum state exist so as to confer personal jurisdiction, but the

case itself has no significant connection to the forum state.” In re Pirelli Tire, 247

S.W.3d at 675-76. “Allowing the suit to proceed in Texas simply because this

State may provide the most attractive or convenient forum for the plaintiffs, or

because plaintiffs rate Texas as the most advantageous forum as a matter of legal

strategy, is not justified where Texas has no stake in the outcome.” Id. at 682.

4. Kansas Can Exercise Jurisdiction Over Properly-Joined

Defendant.

As previously stated, the Relator Defendants are in good standing and

registered to do business in the State of Kansas. RR Tab 8 at Ex. 1, ¶¶ 8-9. As

such, both are amenable to service through their registered agent in Kansas. Id.

Thus, Kansas has jurisdiction over the Plaintiffs, these Relators, and the designated

responsible third party (CRRM). See id. It also has jurisdiction over the vast

majority of fact witnesses. See RR Tab 8 at Ex. 1 at 4-10.

5. Balance of Private and Public Interests.

(i) Private Interests of the Parties.

The pump which failed is estimated to weigh 1,000 pounds and is stored in

Coffeyville, Kansas. RR Tab 8 at Ex. 1, ¶¶ 8-9. Obviously, the site of the accident

and the related piping, machinery and facilities are all located within the

Coffeyville refinery. Jury access to the site of the accident and the equipment

exists in Kansas, not Texas. Thus, the private interests of the parties in the conduct

18

of trial in the jurisdiction where the accident occurred and machinery exists is

beneficial to both the parties and to the proper resolution of the litigation.

(ii) Public Interest of Texas.

This is an accident which occurred to Kansas residents, employed at a

Kansas place of business, through a Kansas employment relationship, for which

Kansas workers' compensation benefits were provided. See RR Tab 8 at Ex. 1, ¶¶

8-9. Texas has little, if any, relevance to the litigation. “It is fundamentally unfair

to burden the people of Texas with the cost of providing courts to hear cases that

have no significant connection with the State.” In re Mantle Oil & Gas, 426

S.W.3d at 189, 194-195; see also In re Dauajare-Johnson, No. 14–14–00256–CV,

2014 WL 3401094, at *11 (Tex. App.—Houston [14th Dist.] July 10, 2014, orig.

proceeding).

(iii) Public Interest of Kansas.

In In re Dauajare-Johnson, the Fourteenth Court of Appeals recognized that

"even the possibility that foreign law applies to a dispute is sufficient to warrant

dismissal on forum non conveniens grounds." 2014 WL 3401094 at *11; see also

Vinmar Trade Fin., Ltd., 336 S.W.3d at 679 (holding same); Sammons & Berry,

P.C., 2014 WL 3400713 at * 5 (holding same). As noted in Section III below,

Kansas law applies to this accident. See Section III. Because the Plaintiffs

received workers' compensation benefits pursuant to the Kansas Workers'

19

Compensation Act (RR Tab 8 at Ex. 1), there exists the issue of the extent to which

the Kansas workers' compensation immunity provided by K.S.A. 44-501b(d) will

protect parent companies. In Hughes Wood Products, Inc. v. Wagner, the Texas

Supreme Court stated:

Section 184 of the Restatement provides the standards by which a

court is to determine immunity from a tort suit when an employee is

covered by workers' compensation insurance . . . That section

provides:

Recovery for tort or wrongful death will not be permitted in any

state if the defendant is declared immune from such liability by

the workmen's compensation statute of a state under which the

defendant is required to provide insurance against the particular

risk and under which

(a) the plaintiff has obtained an award for the injury, or . . . .

18 S.W.3d 202, 205-06 (Tex. 2000) (citing RESTATEMENT (SECOND) OF CONFLICT

OF LAWS § 184). The issue of whether the stockholders or the equity interest

holders of an employer enjoy identical workers' compensation immunity, and what

the parameters and extent of that immunity might be, are matters of developing

Kansas law. Kansas provides workers’ compensation immunity to independent

contractors, providing work which “is necessarily inherent in and an integral part”

of the statutory employer’s trade or business. Hollingsworth v. Fehrs Equip. Co. of

K.C., 240 Kan. 398, 405, 729 P.2d 1214, 1219 (1986). However, that principle has

received limited examination in the context of a parent-subsidiary relationship.

See Fugit v. United Beechcraft, Inc., 222 Kan. 312, 315, 564 P.2d 521, 524 (1977).

20

Kansas has a keen and abiding interest in allowing its judicial system to address

and determine such issues, and such issues should not be determined by a district

court sitting in Fort Bend County, Texas, as a matter of comity. Coca-Cola Co. v.

Harmar Bottling Co., 218 S.W.3d 671, 680-82 (Tex. 2006) (“On occasion, comity

and choice of law may suggest that a Texas court should dismiss a claim in favor

of a foreign forum under principles of forum non conveniens.”).

III. KANSAS LAW APPLIES TO THIS ACCIDENT.

Where a foreign law governs the relief to be afforded by a lawsuit, such a

factor also weighs in favor of dismissal under the doctrine of forum non

conveniens. See Vinmar Trade Fin., Ltd., 336 S.W.3d at 678. As Kansas law

applies to the underlying litigation, this factor also shows the district court abused

its discretion by denying Relators’ motion to dismiss. Id.

Texas courts follow the "most significant relationship test" set out in the

Second Restatement of the Conflict of Laws to determine the applicable law in tort

cases where the injury occurred outside the state of Texas. See Zermeno v.

McDonnell Douglas Corp., 246 F. Supp. 2d 646, 655 (S.D. Tex. 2003) (citing

Torrington v. Stutzman, 46 S.W.3d 829, 848 (Tex. 2000)); Gutierrez v. Collins,

583 S.W.2d 312, 318 (Tex. 1979). Section 145 of the Restatement outlines the

factual matters to consider in applying the Section 6 principles to a given case. See

RESTATEMENT (SECOND) CONFLICT OF LAWS § 145. Applying the “most

21

significant relationship test,” the present facts compel the application of Kansas

substantive law to an employment accident for which workers' compensation was

provided. Hughes Wood Products v. Wagner, 18 S.W.3d at 205-06.

A. Restatement General Factors.

Section 6 of the Restatement identifies the general factors relevant to the

choice of law question. As the Court will see, an analysis of these considerations

weighs heavily in support of applying Kansas law:

(a) the needs of the interstate and international systems;

(b) the relevant policies of the forum;

(c) the relevant policies of other interested states and the relative

interests of those states in the determination of the particular

issue;

(d) the protection of the justified expectations;

(e) the basic policies underlying the particular field of law;

(f) certainty, predictability and uniformity of result; and

(g) ease in determination and application of the law to be applied.

See RESTATEMENT (SECOND) CONFLICT OF LAWS § 6.

22

1. Needs of the Interstate and International Systems.

The goal of this initial factor is to harmonize relations between the states and

to facilitate commercial activities between them. See Sacks v. Four Seasons Hotel,

Ltd., No. 5:04CV73, 2006 WL 783441 at *17 (E.D. Tex. Mar. 24, 2006). Statutory

workers' compensation immunity is the most significant difference between the

Kansas and Texas laws relevant to this case. Unlike Texas law, Kansas does not

allow plaintiffs to circumvent the workers' compensation immunity by allegations

of gross negligence. K.S.A. § 44-501b(d); see also Duncan v. Perry Packing Co.,

162 Kan. 79, 174 P.2d 78 (1946).

2. Relevant Policies of the Forum.

Texas is the site of the joint headquarters of CVR Energy, Inc. and CVR

Refining, LP, which possess an indirect equity interest in Plaintiffs' employer,

CRRM. See RR Tab 8 at Ex. 1; RR Tab 9 at Ex. 2. With that lone exception,

Texas has no recognizable interest in protecting Kansas citizens from Kansas

injuries occurring in Kansas by a company doing business in Kansas. See In re

Mantle Oil & Gas, 426 S.W.3d at 189, 194-195. The fire at issue occurred on the

premises of Coffeyville Resources Refining & Marketing, LLC's refinery, located

in Coffeyville, Kansas. See RR Tab 4 at 3. This Kansas fire harmed Kansas

residents who were full-time employees of their Kansas-based employer. Id. For

their injuries, the Kansas residents received Kansas workers' compensation. RR

23

Tab 8 at Ex. 1. Texas has no real interest in the litigation. See In re Mantle Oil &

Gas, 426 S.W.3d at 189, 194-195.

3. Relevant Policies and Interests of Other Interested States.

The relevant policies of Kansas impact this litigation. Kansas is the

residential state of Donald R. Collier and the state in which Dale A. Niemeyer is

employed. RR Tab 4 at 1-3. Kansas is the state where the employment

relationship between Mr. Collier, Mr. Niemeyer and Coffeyville Resources

Refining & Marketing, LLC ("CRRM") exists. See id. Kansas is the state where

the accident occurred. Id. Kansas law governed the payment of workers'

compensation benefits to Mr. Collier and Mr. Niemeyer and governs the

subrogation rights of CRRM and its insurer. RR Tab 8 at Ex. 1. Again, Texas has

no real interest in this matter. See In re Mantle Oil & Gas, 426 S.W.3d at 189,

194-195.

4. Protection of Justified Expectations.

According to comment (g) on Subsection 2 of Section 6 of the Restatement,

the protection of justified expectations is least appropriate in negligence cases.

Restatement (Second) Conflict of Laws § 6, cmt. (g). Specifically, comment (g)

states:

There are occasions, particularly on the area of negligence, when the

parties act without giving thought to the legal consequences of their

conduct or to the law that may be applied. In such situations, the

parties have no justified expectations to protect, and this factor can

24

play no part in the decision of a choice-of-law question. (Emphasis

added.)

Id. Moreover, there is no evidence that the real parties’ “justified

expectation” was that Texas law would apply to any injuries resulting from

their Kansas employment with CRRM.

5. Basic Policies Underlying the Particular Field of Law.

The workers' compensation policies of Texas have no relationship to the

instant litigation. Here, Kansas workers' compensation benefits were provided to

Kansas workers injured in Kansas. RR Tab 8 at Ex. 1. Kansas, not Texas, has the

immediate interest to insure that its public policies are correctly implemented to

regulate its employers and its employees.

6. Certainty, Predictability, and Uniformity of Result.

The principles of certainty, predictability and uniformity of result would be

furthered by application of Kansas law to this Kansas accident. Plaintiffs received

the statutory benefits available to them through the workers' compensation law of

Kansas. See RR Tab 8 at Ex. 1. Utilization of the statutory workers' compensation

immunity of the state in which the accident occurred is required to obtain a certain,

predictable and uniform result. Hughes Wood Products, Inc. v. Wagner, 18

S.W.3d at 205-206.

25

7. Ease in Determination and Application of the Law to be

Applied.

The application of Kansas law to this case is best accomplished by a Kansas

Court. Indeed, as courts recognize that “[e]ven the possibility that foreign law

applies to a dispute is sufficient to warrant dismissal on forum non conveniens

grounds,” the evidence establishes that the trial court abused its discretion in

denying the relators’ motion to dismiss. In re Dauajare-Johnson, 2014 WL

3401094 at *11; Vinmar, 336 S.W.3d at 679.

B. Restatement Specific Factors.

While Section 6 of the Restatement “sets out the general principles by which

the more specific rules are to be applied,” Section 145 of the Restatement provides

the more specific criteria applicable to a tort case. Gutierrez, 583 S.W.2d at 318-

19. Section 145 emphasizes the following four factors:

(a) the place where the injury occurred,

(b) the place where the conduct causing the injury occurred,

(c) the domicil[e], residence, nationality, place of incorporation and

place of business of the parties, and

(d) the place where the relationship, if any, between the parties is

centered.

Id. at 319 (quoting RESTATEMENT (SECOND) CONFLICTS OF LAW § 145).) See also,

Transit Mix Concrete & Materials Co., 2013 WL 3329026 at *5.

26

“In an action for a personal injury, the local law of the state where the injury

occurred determines the rights and liabilities of the parties . . .” Transit Mix

Concrete & Materials Co., 2013 WL 3329026 at *6. Here, the injuries occurred in

Kansas. RR Tab 4 at 3; RR Tab 7 at Ex. 1. The pump seal leak occurred in

Kansas. Id. The fire occurred in Kansas. Id. The conduct associated with the

pump seal leak and fire occurred in Kansas. Id. The domicile, residence, and

place of business of the parties is in Kansas. Id. The employment relationship

between Mr. Collier, Mr. Niemeyer and their employer exists in Kansas. Id.

Moreover, virtually all witnesses to the accident reside in Kansas. RR Tab 10 at

Ex. 1. How could the law of any other forum apply?

C. The Fact that Kansas Law is Different is Irrelevant.

Plaintiffs are likely to argue that the law of Kansas is different in many

respects. However, the fact “that the substantive law of the alternative forum may

be less favorable to the plaintiff is entitled to little, if any, weight” in a choice of

law or a forum non conveniens decision. In re Mantle Oil & Gas, LLC, 426

S.W.3d at 189 (Louisiana was an adequate alternative forum, despite the fact that

plaintiff's claims would be barred under the Louisiana statute of limitations and

punitive damages were not recoverable in Louisiana.); see also, In re Pirelli Tire,

LLC, 247 S.W.3d at 678.

27

In Sammons & Berry, P.C. v. Nat'l Indemnity Co., No. 14-13-00070-CV,

2014 WL 3400713 at * 5 (Tex. App.—Houston [14th Dist.] July 10, 2014, no pet.),

the Court stated:

[t]hat the substantive law of an alternative forum may be less

favorable to the plaintiff is entitled to little, if any, weight.” In re

Pirelli Tire, L.L.C., 247 S.W.3d at 678. Forum non conveniens

requires an available remedy in the alternative forum, but does not

require the same cause of action or equivalent relief be available. In re

Gen. Elec. Co., 271 S.W.3d at 687; In re Pirelli Tire, L.L.C., 247

S.W.3d at 678 (holding Mexico was adequate forum even though it

may not afford cause of action for strict liability, or provide for

“American–Style” discovery or right to jury); Berg v. AMF, Inc., 29

S.W.3d 212, 216–17 (Tex. App.—Houston [14th Dist.] 2000, no pet.)

(holding Canada was adequate forum although it “does not recognize

strict liability causes of action, has monetary limits on non-economic

damages, and only allows for recovery of punitive damages upon a

showing of intentional conduct”); Gomez de Hernandez v.

Bridgestone/Firestone North Am. Tire, L.L.C., 204 S.W .3d 473, 483

(Tex. App.—Corpus Christi 2006, pet. denied) (“The primary

consideration is whether the alternate forum entitles appellants to a

remedy for their losses, even if the compensation available under the

remedy is less than what may be recovered in a Texas court.”).

Here, the evidence established that Kansas law should be applied by a Kansas

court.

IV. PLAINTIFFS' ARGUMENT THAT DEFENDANTS' NEGLIGENCE

OCCURRED IN TEXAS DOES NOT OVERCOME THE SECTION

71.051 FACTORS.

Here, the Plaintiffs' Original Petition does not identify any specific acts of

negligence associated with the Relators. The closest identification of alleged

negligence is the allegation that Relators “committed acts of omission and

28

commission which collectively and severally constitute negligence” at paragraph

19 of the Petition. RR Tab 4 at 4. Plaintiffs further allege those “acts of omission

and commission” rose “to the level of gross negligence/malice” (RR Tab 4 at 4)

and, such negligence occurred in the performances of a Management Services

Agreement between the Relators and CRRM. RR Tab 10 at 1. No further

specification is provided.

Plaintiffs are presently without a specific theory of negligence against the

Relators. See RR Tab 4, 10. Plaintiffs clearly hope to develop a theory that

Relators' corporate decisions somehow affected the pump seal leak, and the Texas

law of gross negligence will allow them to circumvent the Kansas workers'

compensation immunity. See RR Tab 10. However, even these theories are

insufficient to avoid a dismissal on a forum non conveniens basis. Similar

arguments were presented and rejected in In re BPZ Resources, Inc., 359 S.W.3d

866, 870-80 (Tex. App.—Houston [14 Dist.] 2012, orig. proceeding):

Though the relators are Texas corporations who made allegedly

negligent decisions that allegedly led to the explosion on the Supe,

consideration of all the Lauritzen - Rhodits factors, we conclude as a

matter of law, that Peruvian law applies to the real parties’ claims. . . .

We presume, without deciding, that the relators made decisions in

Houston that were a legal cause of the explosion when they allegedly

ordered production on the platform to be “ramped up” to quickly

generate needed cash, even though they allegedly knew that the

operations involved dangerous procedures, insufficient equipment,

and unseaworthy vessels. Under this presumption, the real parties’

injuries would have resulted in part from acts or omissions that

29

occurred in Texas. Nonetheless, these alleged acts and omissions in

Texas would be a more remote cause of the real parties' injuries than

the alleged acts or omissions in Peru of Paolillo, the crew of the Supe,

and BPZ Peru. . . .

We conclude that the balance of the parties' private interests and the

public interest of the state predominate in favor of this action being

brought in a Peruvian court. [Citations omitted.]

Similar arguments received similar results in In re Mantle Oil & Gas, LLC, 426

S.W.3d 182, 195 (Tex. App.—Houston [1st Dist.] 2012, orig. proceeding), where

the plaintiffs contended that:

. . . because Mantle Oil is a Texas limited liability company and made

decisions regarding the operation of the well from its Texas

headquarters, Texas courts and juries have a "significant interest in

how [it] operates as a business. Essentially, the Alcee plaintiffs

claim that Mantle Oil negligently operated the Well from its

Texas headquarters which caused the blowout, and, therefore,

because the acts in Texas caused their damages, Texas has a local

interest in adjudicating this dispute. . . .”

(Emphasis supplied). The Mantle court rejected these arguments holding that the

plaintiffs were not Texas residents and Texas generally afforded “less deference to

a non resident's forum choice.” In re Mantle, 426 S.W.3d at 188. The court

further stated:

. . . it is undisputed that the Alcee plaintiffs are Louisiana residents,

that the blowout occurred in Louisiana, and that any alleged personal

injuries and property damage occurred in Louisiana. Louisiana has a

substantial interest in making sure that its citizens and their property

are not harmed by oil and gas operations within its borders.

30

Id. at 195. After noting that the witnesses and evidence were primarily in

Louisiana and that compulsory process was unavailable to compel witness

testimony in Texas, the court concluded:

It is fundamentally unfair to burden the people of Texas with

the cost of providing courts to hear cases that have no

significant connection with the state.

Id. at 189. Thus, arguments that the decisions of companies headquartered in

Texas caused or contributed to accidents in the out-of-state operations of affiliates

or subsidiaries have been rejected by the First and the Fourteenth Courts of

Appeals. In such cases, the courts of appeals dismissed the litigation upon the

forum non conveniens analysis statutorily enacted by Section 71.051 of the Texas

Civil Practice & Remedies Code reflecting the fundamental:

(1) need for reasonable access to out-of-state witnesses and

evidence,

(2) ease of having the out-of-state law administered by the

courts of that state, and

(3) burden which trial would place upon the people of Texas

for issues not significant to Texas.

See In re BPZ Resources, Inc., 359 S.W.3d at 870-80; see also In re Mantle, 426

S.W.3d at 188, 189

31

V. CONCLUSION & PRAYER.

The rulings of the Texas Supreme Court and the First and Fourteenth Courts

of Appeals present clear decisions on similar forum non conveniens issues. Those

decisions provide unmistakable binding guidance to the district court, which

guidance the district court ignored. Where Kansas residents were injured in a

Kansas accident performing work for their Kansas employer, the case should be

tried in Kansas under Kansas law. Kansas is the state of compulsory service;

Texas is not. Texas has little or no interest in the matter and Texas courts and

jurors should not be burdened with administering and resolving the litigation. The

cause of action should have been dismissed in favor of Kansas litigation pursuant

to Section 71.051(b) of the Texas Civil Practice and Remedies Code.

WHEREFORE, the Relators pray that this Court issue a Writ of Mandamus

requiring the 268th Judicial District Court of Fort Bend County, Texas to vacate its

order denying Relators’ motion to dismiss and to order the dismissal of the

underlying action pursuant to Section 71.051(b) of the Texas Civil Practice and

Remedies Code.

32

Respectfully submitted,

MARTIN, DISIERE, JEFFERSON &

WISDOM, L.L.P.

By: /s/ Philip D. Sharp

Phillip D. Sharp

Texas State Bar No. 18118680

808 Travis, 20th Floor

Houston, TX 77002

Telephone: (713) 632-1700

Facsimile: (713) 222-0101

Email: sharp@mdjwlaw.com

SMITHYMAN & ZAKOURA, CHARTERED

By: /s/ Lee M. Smithyman

Lee M. Smithyman

KS Supreme Court #09391

750 Commerce Plaza II

7400 West 110th Street

Overland Park, KS 66210-2362

Telephone: (913) 661-9800

Facsimile: (913) 661-9863

Email: lee@smizak-law.com

Application for pro hac admission pending

ATTORNEYS FOR RELATORS

CERTIFICATION

The undersigned has reviewed the petition and concluded that every factual

statement in the petition is supported by evidence included in the appendix.

/s/ Philip D. Sharp

Philip D. Sharp

33

CERTIFICATE OF COMPLIANCE

This is to certify that this computer-generated Petition for Writ of

Mandamus contains 7,453 words and complies with rule 9.4 of the Texas Rules of

Appellate Procedure.

/s/ Philip D. Sharp

Philip D. Sharp

Dated: August 21, 2015

CERTIFICATE OF SERVICE

I hereby certify that on this 21th day of August, 2015, a true and correct

copy of the Petition for Writ of Mandamus and Relator’s Record were sent by the

method indicated to the following individuals:

Gary M. Riebschlager Via Email gary@riebschlagerlaw.com

THE RIEBSCHLAGER LAW FIRM

801 Congress, Suite 250

Houston, TX 77002

Richard L. Tate Via Email: rltate@tate-law.com

Kristin Reis Via Email: kreis@tate-law.com

TATE, MOERER & KING, LLP

206 South Second Street

Richmond, TX 77469

/s/ Philip D. Sharp

Philip D. Sharp

34

APPENDIX & RELATOR’S RECORD

INDEX TO APPENDIX & RELATOR’S RECORD

Tab 1 Affidavit of P. Sharp

Tab 2 Transcript of August 7, 2015 Motion to Dismiss Hearing

with Ruling Denying Motion To Dismiss

Tab 3 Docket Sheet

Tab 4 Original Petition

Tab 5 Original Answer

Tab 6 Defendants’ Motion To Dismiss

Tab 7 Memorandum in Support of Defendants’ Motion To Dismiss

Tab 8 Supplemental Memorandum in Support of Defendants’

Motion To Dismiss

Tab 9 Plaintiffs’ Response To Motion To Dismiss

Tab 10 Plaintiffs’ Supplemental Petition

Tab 11 Services Agreement

Tab 12 Tex. Civ. Prac. & Rem. Code § 71.051

Tab 13 KSA 60-258a

Tab 14 KSA 60-513

Tab 15 Kansas Pattern Jury Instructions – 171.02

Tab 1

AFFIDAVIT OF PHILLIP SHARP

STATE OF TEXAS §

§

COUNTY OF HARRIS §

BEFORE ME, the undersigned authority, on this day personally appeared Phillip

Sharp, being by me duly sworn upon his oath, and he deposed and stated as follows:

1. My name is Phillip Sharp. I am a resident of Harris County, Texas. I am over 21

years of age and have never been convicted of a felony or a crime involving moral

turpitude, nor have I ever been adjudged incompetent.

2. I am duly competent and qualified in all respects to make this affidavit and

everything stated within this affidavit is true and within my personal knowledge.

3. I represent Relators/Defendants, CVR Energy, Inc. and CVR Refining, LP

(collectively "CVR"), in this mandamus proceeding, which arises out of the trial

court cause no. 2015-DCV-220330 in the 268th District Court of Fort Bend

County, Texas (the "Underlying Proceeding"). I also represent CVR in the

Underlying Litigation.

4. I have personal knowledge from my representation of the Relators that the

following items in the Relators' Record are true and correct copies of the original

documents material to the Relators' claims and that were filed in the Underlying

Proceeding:

Tab 2: Transcript of August 7, 2015 Motion to Dismiss Hearing with

Ruling Denying Motion To Dismiss;

Tab 3: Docket Sheet;

Tab 4: Original Petition;

Tab 5: Original Answer;

Tab 6: Defendants' Motion To Dismiss;

Tab 7: Memorandum in Support of Defendants' Motion To Dismiss;

Tab 8: Supplemental Memorandum in Support of Defendants' Motion To

Dismiss;

Tab 9: Plaintiffs' Response To Motion To Dismiss;

Tab I O:Plaintiffs' Supplemental Petition.

I also have personal knowledge from my representation of the Relators that Tab

II: "Services Agreement" is a true and correct copy of an agreement between

CVR Refining, L.P., CVR Refining GP, LLC, and CVR Energy, Inc., which is

referenced in the Plaintiffs' Supplemental Petition filed in the Underlying

Proceeding, but which was not filed in the Underlying Proceeding itself.

5. I am authorized by the Relators to make this affidavit. I have read this affidavit

and it is true and correct. All matters st therein are within my personal

knowledge and are true and correct.

SWORN TO AND SUBSCRIBED BEFORE ME on this 20th day of August, 2015.

~~~~~~~~~~-~~~

KATHERINE M BOCCO Printed Name: 'Rtitben.M OJ. f>oce..o

NOTARY PUBLIC, STATE OF TEXAa

MY COMMISSION EXI'IRES

Notary Public in and for the State of Texas.

• FEB. 19, 2017 · My commission expires: z-/Cf -2-l) 11

Tab2

1

1 REPORTER'S RECORD

VOLUME 1 OF 1 VOLUME(S)

2 COURT OF APPEALS NO.

3 TRIAL COURT CAUSE NO. 15-DCV-220330

4 DONALD R. COLLIER, ) IN THE DISTRICT COURT OF

JENNIFER J. COLLIER, )

5 DALE A. NIEMEYER, AND )

WENDY NIEMEYER )

6 )

vs. ) FORT BEND COUNTY, T E X A S

7 )

CVR ENERGY, INC. AND )

8 CVR REFINING, L.P. ) 268TH JUDICIAL DISTRICT

9

10

11

MOTION TO DISMISS HEARING

12

13

14

15 On the 7th day of August, 2015, the following

16 proceedings came on to be held in the above-titled and

17 numbered cause before the Honorable Brady G. Elliott,

18 Judge Presiding, held in Richmond, Fort Bend County,

19 Texas.

20 Proceedings reported by Certified Shorthand Reporter

21 and Machine Shorthand/Computer-Aided Transcription.

22

23

24

25

Mary Nancy Capetillo, CSR, RPR, CRR

2

1 A P P E A R A N C E S

2

COUNSEL FOR THE PLAINTIFFS:

3

Richard Tate

4 Texas State Bar No. 19664460

E-mail: rltate@tate-law.com

5 Tate, Moerer & King, LLP

206 South Second Street

6 Richmond, Texas 77469

Telephone: {281) 341-0077

7

David Medina

8 Texas State Bar No. 00000088

5300 Memorial Drive, Suite 890

9 Houston, Texas 77007

Telephone: {713) 653-3147

10

11 COUNSEL FOR THE DEFENDANTS:

12 Lee Smithyman

Kansas Supreme Court No. 09391

13 E-mail: lee@smizak-law.com

Smithyman & Zakoura, Chartered

14 750 Commerce Plaza II

7400 West 110th Street

15 Overland Park, Kansas 66210

Telephone: {913) 661-9800

16

17

18

19

20

21

22

23

24

25

Mary Nancy Capetillo, CSR, RPR, CRR

3

1 VOLUME 1

2 REPORTER'S RECORD

3 August 7, 2015

4 PAGE VOL.

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6 Ruling of the Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 1

7 Adjournment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 1

8 Reporter's Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 1

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Mary Nancy Capetillo, CSR, RPR, CRR

4

Reporter's Record

August 7, 2015

1 P R 0 C E E D I N G S

2 THE COURT: Collier, et al. versus CVR

3 Energy. Let's start off with the proposition that I

4 have read your pleadings relating to the motion to

5 dismiss and the response thereto. So, make your points.

6 MR. SMITHYMAN: Your Honor, I am Lee

7 Smithyman. I am counsel for the defendants -- the CVR

8 defendants in this case.

9 As you know from reading those pleadings,

10 this is a case on behalf of a Mr. Collier and a

11 Mr. Niemeyer. One is a resident of Coffeyville, Kansas;

12 the other of Coffeyville, Oklahoma, same town, just over

13 the line; and it relates to an accident that occurred in

14 their -- while they were employed at Coffeyville

15 Resources Marketing -- Refining & Marketing, a

16 subsidiary of the CVR defendants that are here in Sugar

17 Land.

18 It occurred because of a leak in a pump --

19 a rotating pump which created a vapor cloud which caused

20 a fire and caused the injuries to these men. It was a

21 workers' compensation injury during employment, and

22 workers' compensation benefits were provided by

23 Coffeyville Resources.

24 Coffeyville Resources is essentially --

25 it's a statutory employer; and it is a subsidiary of CVR

Mary Nancy Capetillo, CSR, RPR, CRR

5

Reporter's Record

August 7, 2015

1 Energy, which is here in Sugar Land; and it is

2 two-thirds owned by CVR Refining, which is another

3 limited liability -- actually a general partnership, but

4 it is -- pardon me -- a limited partnership. The

5 general partner is here also in Sugar Land. So it's

6 quite down the food chain, if you will.

7 A lawsuit has been filed here, and you --

8 if you have looked at the petition -- and the petition

9 is also shown as an exhibit to what was provided to

10 you -- the only allegation, negligence, occurs at

11 paragraph 19 of that which simply says that the accident

12 in Kansas occurred because of, quote, omissions and

13 commissions by the -- by CVR in the Sugar Land area.

14 So, essentially, that is the lawsuit; and

15 the issue before you is: Why would we burden your

16 judicial resources and 12 jurors here in Texas over an

17 accident that occurred in Kansas to Kansas residents

18 while in a Kansas employment relationship for a

19 Kansas-resident refinery? Why would we do that, take

20 care of that?

21 We filed a motion under Texas statute

22 71.051 for -- and asking you to dismiss for forum

23 non conveniens purposes because this is not a convenient

24 forum. There's a five-step test that is provided by

25 that statute, as you know from reading the pleadings;

Mary Nancy Capetillo, CSR, RPR, CRR

6

Reporter's Record

August 7, 2015

1 and the first one is: Does an alternate forum exist

2 where the claim can be tried?

3 And, essentially, that answer is, yes;

4 because these two defendants are registered to do

5 business in Kansas, doing business in Kansas, subject to

6 process in Kansas; and anything that can be done in

7 Texas can be done in Kansas as we go with that.

8 Does it have an adequate remedy?

9 Of course, it does. It's a sister state.

10 And as the Texas Supreme Court has said in In Re: ENSCO

11 and as the Fourteenth panel has stated in Sammons and

12 Sammons versus National Indemnity, the fact that the

13 remedy is not exactly the same doesn't matter. It's a

14 reasonable remedy. It should go forward.

15 The third question is: Would the

16 maintenance of a claim or an action in Texas work a

17 substantial injustice to the parties? This works

18 hand-in-glove with another issue which is the

19 public-interest factor. That's sort of the gulf factors

20 here.

21 We've provided a Rule 194 disclosure of

22 those witnesses that are available for this. There's 25

23 Kansas-resident witnesses, none of which are subject to

24 your -- to compulsory process from your court here

25 because you -- we can subpoena for a 150-mile area and

Mary Nancy Capetillo, CSR, RPR, CRR

7

Reporter's Record

August 7, 2015

1 so on. They're living and residing in different states.

2 So we have 25 resident witnesses not available to this

3 Court.

4 We have three identified Missouri and

5 Oklahoma witnesses. We have all of the physicians of

6 the health care personnel, the EMTs, the police. All

7 that were witnesses to this accident or aspects to this

8 accident are in Kansas or Missouri, one or -- maybe a

9 health care or two provider in Oklahoma; but they are

10 all -- they all have one characteristic. They're not

11 subject to process by this Court. That makes this very

12 inconvenient.

13 The Texas Supreme Court in In Re: ENSCO,

14 which was the first forum non conveniens decision to

15 really -- to sort of set the standard on the statute --

16 for non conveniens statute, said: Lack of compulsory

17 process in Texas is fundamentally unjust. They said

18 that in In Re: ENSCO when they upheld that case. They

19 also -- the Fourteenth Texas Court of Appeals said the

20 same thing in In Re: BPZ. We'll talk about it in a

21 minute. And the First District Court of Appeals in

22 Texas in In Re: Mantle reiterated that point.

23 We have established through that affidavit

24 and through our discovery on this that all of the

25 witnesses to the accident logically are in Kansas,

Mary Nancy Capetillo, CSR, RPR, CRR

8

Reporter's Record

August 7, 2015

1 Missouri, or Oklahoma. They're not here.

2 You then have to determine the balance of

3 the private interest of the parties and the public

4 interest of Texas. I've talked about the public

5 interest of Texas, the unfair burden to the judiciary

6 and to the citizens. In Re: Mantle talks about that; so

7 does In Re: BPZ; so does ENSCO.

8 One of the issues that's important in a

9 forum non conveniens determination is: What is the law

10 that will be applied? And many of the cases that were

11 cited to you here address that issue. And the reason is

12 it's inconvenient to the parties and to the Court to

13 apply the law of a different jurisdiction if it's

14 unnecessary.

15 THE COURT: Counsel, that reminds me of a

16 case I had over 20 years ago in which I interpreted the

17 Koran as it applied to the nation of Afghanistan, which

18 at that point in time was divided between two entities;

19 and the civil law of Russia applied to administering. I

20 didn't have any trouble interpreting those laws. I

21 think I can interpret Kansas laws.

22 MR. SMITHYMAN: Well, Your Honor --

23 THE COURT: Oh, by the way, it also

24 included the law of Louisiana. That was probably the

25 toughest to apply. But that's aside.

Mary Nancy Capetillo, CSR, RPR, CRR

9

Reporter's Record

August 7, 2015

1 MR. SMITHYMAN: I can assure you, Judge,

2 that the law -- if you can handle that, you can probably

3 handle Kansas law; and I concede that point; but it

4 be that as it may, Kansas has -- essentially is the

5 place where the injury occurred. It's where the conduct

6 causing the injury occurred. It's the domicile of the

7 plaintiffs, the domicile of the employer. It's where

8 everyone is. We have essentially no argument.

9 THE COURT: I don't want to make the

10 argument for the Defense; but as I'm reading your

11 pleadings, questions come to mind regarding these

12 various factors. And as you pointed out in your

13 argument, there are at least three states that you've

14 named that various parties, witnesses, and so forth are

15 involved in; but that's not uncommon.

16 I think one of the telling points to me

17 or one of the points that really flared up was one of

18 the examinations that you cited of the particular

19 tool/device/whatsoever that is the nexus of the cause of

20 the explosion was sent to Missouri to be examined by an

21 expert. So we've already involved at least three states

22 in this litigation that are not related to Texas but are

23 not related any more to Kansas than Texas is.

24 Why should I think that the location of

25 the various witnesses and parties over three states

Mary Nancy Capetillo, CSR, RPR, CRR

10

Reporter's Record

August 7, 2015

1 should be a critical factor in the determination I'm

2 going to make here?

3 MR. SMITHYMAN: Because they're not

4 subject to compulsory process here, and your Supreme

5 Court has said that the lack of compulsory process in

6 Texas is fundamentally unjust and --

7 THE COURT: Unfortunately, we live in the

8 year of 2015; and video examination is readily at hand

9 and constantly done. In fact, I did it in a med-mal

10 case not too long where the physician was in Tennessee.

11 So the fact that the witnesses can't be here in person

12 doesn't mean they're not available. Now I may not be

13 able to order them to be available; but as I've just

14 found from a course I took this -- early part of this

15 week, judges in different states are now talking to each

16 other.

17 MR. SMITHYMAN: Your Honor, I don't

18 disagree that ultimately videos would be used; but if

19 you've ever sat through three days of videos of various

20 people and looked at the glazed eyes of jurors, you know

21 that it is not a fundamentally good way to present

22 evidence to --

23 THE COURT: I will not argue that point

24 with you at all, Counsel; but that's the life we live in

25 right now. And, yes, it doesn't take but about ten

Mary Nancy Capetillo, CSR, RPR, CRR

11

Reporter's Record

August 7, 2015

1 minutes for a video deposition to put every juror

2 asleep, including the judge of the court, which y'all

3 have witnessed many times; but that's the world we live

4 in. I'll also point out places of refinery explosion;

5 and we're 50 miles from the largest concentration of

6 refineries in the United States, if not the world. So

7 experts and those who can testify are resulting -- are

8 certainly within the jurisdiction of this court. And I

9 guess those are the kind of questions that started

10 popping up as it related to your argument and these

11 decisions the Supreme Court of the State of Texas made

12 years ago, not that many years ago; but it all plays

13 into my making a decision.

14 I'd like you to respond to the fact that

15 technology has changed a lot about how we try cases.

16 MR. SMITHYMAN: Well, Your Honor, I will

17 tell you that videotaped depositions have been here for

18 ten years. I've been certainly doing it for ten years.

19 And every case that I have given to you has been decided

20 since 2010. In Re: ENSCO is 2010. The Mantle case is

21 2012.

22 THE COURT: I'll point out to you,

23 Counsel, that, in fact, I have had live testimony from

24 people that are outside of this area by whatever the

25 devices are that seem to have worked very well; and

Mary Nancy Capetillo, CSR, RPR, CRR

12

Reporter's Record

August 7, 2015

1 technology is in Kansas just as well as it is here. So

2 I'm not lessening the impact of what you're saying. I'm

3 just saying that in the world we live here today, in

4 2015, there are ways to present the case that is just as

5 effective as it would be in Kansas as here.

6 The witnesses may be in an office in

7 Kansas -- city of Kansas or wherever it may be, but

8 they'll be live in their testimony here. We're doing

9 that consistently and more frequently than I'd like to

10 think -- my gray hair never imagined -- but that seems

11 to put us in a different light than those cases do. So

12 I want you to focus in on specifically that technology

13 available, what it is that I can't do here that a Kansas

14 courtroom would be able to do.

15 MR. SMITHYMAN: You can't have the live

16 witnesses. You will have videos, you know, for days on

17 end. That is perhaps the biggest, but the issue of

18 convenience of this forum goes to issues of whether this

19 is appropriate here or more appropriately handled in

20 Kansas; and the interesting --

21 THE COURT: Let me interrupt you. We're

22 not going to be trying the Kansas workmen's comp case

23 here. May I presume that's correct?

24 MR. SMITHYMAN: No. Actually you may

25 have -- there may be legal defenses that are associated

Mary Nancy Capetillo, CSR, RPR, CRR

13

Reporter's Record

August 7, 2015

1 with the Kansas workers' compensation benefits.

2 THE COURT: I will give you that there are

3 some preemptive laws that apply in almost every state

4 that has workers' comp laws that would preempt the

5 ability of this Court to address the workers' comp

6 issues and the other issues that are going to be -- I

7 presume to be presented. Now I will give you that, but

8 refresh my memory. It's been a long time since I saw

9 Kansas law. Is there -- is there an overriding

10 preemptive provision in Kansas law that basically shuts

11 down all other tort actions?

12 MR. SMITHYMAN: Yes. Yes. And that

13 statute -- and it is entirely different from Texas.

14 Because in Texas one can circumvent the workers'

15 compensation immunity by alleging gross negligence and

16 establishing gross negligence. In Kansas that cannot be

17 done. That's one major, major difference here.

18 The second major difference is the

19 subrogation rights and how they -- they particularly

20 work in terms of what an employer's -- or his insurer's

21 subrogation rights are in that situation. Those are

22 different areas as well. There are -- there are --

23 there are a number of procedural differences in Kansas,

24 as you would imagine; but those are the -- those are the

25 most important ones, and certainly the issue of what is

Mary Nancy Capetillo, CSR, RPR, CRR

14

Reporter's Record

August 7, 2015

1 the -- what is the responsibility of a parent, because

2 it's nothing more than a stockholder or an equity holder

3 in a subsidiary. And corporations are formed in order

4 to shield liability and stop it. And so the issue then

5 becomes: What is the situation in that?

6 And that is something that will be

7 addressed very thoroughly with you, and that is an issue

8 that is going to be different in Kansas than it is in

9 Texas. And, frankly, I think that it would be difficult

10 for you to look at all those issues in Kansas and be

11 making decisions on a Kansas issue that is not really as

12 fully developed, candidly, in Kansas it is here in

13 Texas.

14 And if it should be developed, who should

15 develop it for Kansas? A Kansas court and go through

16 the Kansas courts of appeals. Why should we have a

17 Texas judge deciding that kind of an issue going through

18 the Texas courts of appeals as to what Kansas law would

19 be? That to me -- that is -- that is why, Your Honor,

20 when you go through those cases that the choice of law

21 and what law will be applied is always sort of in the

22 background and sometimes at the forefront talking about

23 those issues; and that's why, if that law is to be

24 applied, it's very strong. Your Honor --

25 THE COURT: So it's not uncommon that we

Mary Nancy Capetillo, CSR, RPR, CRR

15

Reporter's Record

August 7, 2015

1 apply other states' laws to cases that arise in Texas,

2 even Louisiana.

3 MR. SMITHYMAN: Even Louisiana. Even

4 Louisiana, but you know Louisiana --

5 THE COURT: Back in the day when I went to

6 law school, Louisiana was still heavily into the

7 Napoleonic Code.

8 MR. SMITHYMAN: And I am actually aware of

9 that; and, Your Honor, one of the most important cases

10 that governs this is a Louisiana case. It was In Re:

11 Mantle Oil & Gas, which is cited for you; and there's

12 two really important cases that were in the brief I

13 filed on Tuesday, I want to say; and it's in the back

14 section, the last two pages. One is In Re: Mantle. The

15 other is In Re: BPZ Resources.

16 In Re: Mantle had Louisiana plaintiffs

17 that sued over an oil well blow-out that injured them in

18 Louisiana. The interesting thing is that -- and the --

19 in that case there was a Texas employer, and they sued

20 here; and because that accident occurred in Louisiana

21 and you had Louisiana plaintiffs, it was kicked back to

22 Louisiana even though it was Louisiana law; and we all

23 know that that is the one state in the nation with --

24 that everything is different.

25 But, Your Honor, if you look at, like --

Mary Nancy Capetillo, CSR, RPR, CRR

16

Reporter's Record

August 7, 2015

1 let me give you four cases here that I think, more than

2 any other, give you the strength of this -- these

3 concepts -- the vigor with which the Supreme Court and

4 the courts of appeals are enforcing this non conveniens

5 statute and doing it to ensure that we don't open up a

6 forum here in Texas for cases that really aren't for

7 Texas.

8 The best example is ENSCO Offshore, which

9 is the leading case. I'm sure you're aware of that.

10 That was an Australian plaintiff, Australian employer,

11 Australian accent -- accident, which is another rig that

12 blew up; and that used a Texas -- and they sued a Texas

13 parent here in Houston. And the Supreme Court said:

14 No. You have to dismiss on a forum non conveniens

15 basis. We've talked about In Re: Mantle.

16 In Re: BPZ Resources was a case with

17 Peruvian plaintiffs over a Peruvian rig -- actually a

18 ship -- tanker with a Peruvian employer; but, again, the

19 parent company was here in Houston; and that, too --

20 that, too, was dismissed; and it was -- the dismissal

21 upheld.

22 Finally, there is a second Fourteenth

23 district case that was decided in 2014. A Mexican

24 plaintiff over a contract with another Mexican who had

25 offices here in Texas is the defendant; and they said:

Mary Nancy Capetillo, CSR, RPR, CRR

17

Reporter's Record

August 7, 2015

1 No. This is really about what is occurring in Mexico,

2 and we should dismiss this in favor of the more

3 appropriate forum.

4 I've gone back through all these cases.

5 As you can imagine, this is a very important issue. I

6 think I can make one rather bold comment; and that is:

7 Every case that I have seen in the last eight years,

8 okay, all of them since the new statute of 2003 and its

9 revision, 2007, every one I've seen where the accident

10 occurred in a different jurisdiction from Texas and the

11 case is being brought by residents of that forum, not

12 Texans, the judge who dismissed it was upheld; and the

13 judge who retained jurisdiction was reversed. Every

14 single case. And that goes for all the ones I've talked

15 to you about as well as others that are in there such as

16 Liberty Mutual versus Transit Mix, Sammons versus

17 National Indemnity, Schippers versus Mazak Properties.

18 I was unable to find a case in which -- if

19 we cut to the chase in the biggest, broadest concepts

20 we've talked about all the little bit -- the place where

21 the accident occurred and everyone is injured, whatever

22 test you use, most significant relationship or whatever,

23 you end up with the law of the place where it occurred.

24 That's a critically important factor. Then you have the

25 residents that are there, and you have the defendants

Mary Nancy Capetillo, CSR, RPR, CRR

18

Reporter's Record

August 7, 2015

1 doing business there. That is the logical place for the

2 forum, and there has not been a case in which a motion

3 to dismiss was granted in that situation where the judge

4 was reversed. There's not been a case where the judge

5 retained jurisdiction in which he was not reversed.

6 The Fourteenth district -- Court of

7 Appeals and the First Court of Appeals have generated

8 more decisions than anyone else because we're in Houston

9 and because of the oil industry and because we have

10 these serious accidents on rigs all around the world.

11 And because of that -- and they have followed ENS CO, the

12 decision of the Supreme Court, right down the line. So,

13 Your Honor, I would -- I would ask that you dismiss this

14 case; and I'm available for any other questions you

15 might have.

16 THE COURT: Mr. Tate?

17 MR. TATE: Well, Your Honor --

18 THE COURT: Tell me why. First, tell me

19 what the involvement of the Sugar Land corporations were

20 in the Kansas refinery that makes them more than just an

21 administrative operation. What will you be able to show

22 me in evidence that shows they had direct operating

23 control over that Kansas refinery?

24 MR. TATE: Thank you, Your Honor.

25 At the outset I will say two things, two

Mary Nancy Capetillo, CSR, RPR, CRR

19

Reporter's Record

August 7, 2015

1 prefatory remarks. First of all, this morning I filed a

2 supplemental petition which supplements our existing

3 petition which just simply -- since he seemed to

4 complain that there wasn't enough specificity he

5 knows what our allegation is -- but essentially seemed

6 to complain there wasn't enough specificity. I said

7 that the Sugar Land defendants, CVR Energy, Inc. and CVR

8 Refining, were negligent in the performance of their

9 duties under the shared services agreement that they

10 undertake to provide management, operational, and

11 day-to-day operational control of their subsidiaries.

12 Now I'm going to come back to that because that is at

13 the heart of the answer to your question.

14 Secondly, I just -- I want to observe that

15 Mr. Smithyman has spent a large amount of his time

16 arguing that this case can't be conveniently tried here

17 and would need to be tried in Kansas because of the

18 location of witnesses and compulsory process.

19 Well, first of all, as the Court noticed,

20 he mentioned three states up there, Kansas, Oklahoma,

21 and Missouri; and Kansas can't force Oklahoma witnesses

22 to come to Kansas, nor can it force Missouri witnesses

23 to come to Kansas. So compulsory process is not

24 available in Kansas to reach those out-of-state

25 witnesses.

Mary Nancy Capetillo, CSR, RPR, CRR

20

Reporter's Record

August 7, 2015

1 In addition to that, there is going to

2 be -- the heart of this case -- the heart of this case

3 is going to be decisions made right here in Sugar Land,

4 Texas not to spend the money that was allocated in the

5 budget under a management of change forum to make the

6 specific improvement on this hydrogen separator that

7 would have prevented this accident. Now, I'm going to

8 come back to that in a minute; but he also --

9 THE COURT: Well, let's talk about that a

10 little.

11 MR. TATE: Okay.

12 THE COURT: And I perceived in the

13 pleadings that there was -- there's issues involving the

14 management direction of the Kansas refinery.

15 MR. TATE: Right.

16 THE COURT: In listening to what you just

17 said, there's certainly a difference between budget and

18 application of that budget.

19 MR. TATE: Right.

20 THE COURT: The negligence would have to

21 fall in that gray area in between and the degree of

22 control exercised by the Sugar Land company over the

23 Kansas refinery.

24 MR. TATE: Exactly, Your Honor. And

25 Exhibit --

Mary Nancy Capetillo, CSR, RPR, CRR

21

Reporter's Record

August 7, 2015

1 THE COURT: And I think -- and I'm sure

2 you perceive where I'm going. If that is going to be

3 the primary issue, then that may drive a decision here;

4 or it may drive a decision to Kansas because, "Okay. We

5 need to do this"; and the Kansas operators' not doing it

6 is entirely two different things.

7 MR. TATE: Well, the Kansas operators

8 can't do it until Sugar Land tells them to. Exhibit F,

9 Your Honor, to our -- to our response is an excerpt from

10 Form 10-Q for CVR Refining, Inc.; and it discusses in

11 very small print the shared services agreement and the

12 responsibilities that CVR Energy and CVR Refining

13 undertake under the management services agreement to

14 provide daily day-to-day operations and supervision of

15 the operations of their -- of the Coffeyville refinery

16 and the Wynnewood refinery which incidentally is the

17 subject of the lawsuit down in Judge Shoemake's court.

18 THE COURT: "Operational" I perceive to

19 be, "I'm the guy on the ground; I'm the guy who tells

20 the guy to turn it off."

21 MR. TATE: Yes.

22 THE COURT: Administrative may

23 differentiate in saying, "This is our rules and

24 regulations. You have to follow them." There's a gap

25 there.

Mary Nancy Capetillo, CSR, RPR, CRR

22

Reporter's Record

August 7, 2015

1 MR. TATE: No.

2 THE COURT: And that is an important gap

3 because that determines in my mind whether this should

4 be a Kansas case or this should be a Texas case.

5 MR. TATE: Operations includes the guy in

6 Kansas who decides -- who implements -- who implements

7 the improvement, the change, the modification to the

8 hydrogen separator that was -- that failed in this case

9 and caused a fire.

10 He can't make that decision. He can't

11 turn that -- he can't, you know, turn the wrench to

12 start that operation until he's given permission from

13 the man in Sugar Land to do it; and that's what the

14 deposition testimony attached as Exhibit H to our -- to

15 our motion shows. He's -- Mr. Hogan is the treasurer of

16 the company, and he shows -- he says that all decisions

17 are made out of Sugar Land in that deposition testimony.

18 THE COURT: Show me.

19 MR. TATE: It starts here, and he

20 discusses all the things that they do out of Sugar Land.

21 THE COURT: Do you have that handy,

22 Counsel?

23 MR. SMITHYMAN: I do.

24 MR. TATE: He discusses all the things

25 they do out of Sugar Land.

Mary Nancy Capetillo, CSR, RPR, CRR

23

Reporter's Record

August 7, 2015

1 MR. SMITHYMAN: What page?

2 MR. TATE: Page 9 in particular.

3 THE COURT: All right.

4 MR. TATE: And let me tell you why that's

5 important specifically in this case, Your Honor. There

6 was a form called an MOC. It's called a Management of

7 Change that was prepared in calendar year 2013. It

8 established the need for and the requirement for

9 improvements to the hydrogen separator, specifically

10 improvements to the seal of the hydrogen separator to

11 keep the fumes from being released which ignited in this

12 accident. But it required those to be done, and it

13 required those to be done by June of 2014.

14 Management decided to spend that money

15 elsewhere. They didn't spend it there. They didn't

16 make the improvement until July -- well, they didn't

17 take and make the improvement in June, as it was

18 scheduled; and this accident occurred on July 29, 2014,

19 almost eight weeks after the improvement was scheduled

20 and budgeted to be done.

21 Your Honor, Mr. Hogan makes the decision

22 as to when they will spend that money. He makes the --

23 THE COURT: All right. How are you going

24 to try to tie the probable cause of the accident to the

25 failure to spend money to effectuate the repairs?

Mary Nancy Capetillo, CSR, RPR, CRR

24

Reporter's Record

August 7, 2015

1 MR. TATE: It's like any other products

2 case, Your Honor. They knew there was a defect in that

3 hydrogen separator. They acknowledge it in this

4 management of summary change. They are under an

5 obligation to go fix it under all kinds of regulations.

6 Okay. And then they delayed doing it because Mr. Hogan

7 or someone else who is controlling the purse strings

8 here says, "I'm not going to spend that money there.

9 I'm going to spend it somewhere else." At the same

10 time, Your Honor, they're paying their chairman a

11 16-million-dollar bonus in that year.

12 Now those are -- and those decisions, Your

13 Honor, are all made right here in Sugar Land. Mr. Hogan

14 admits it. The deposition testimony we've taken in the

15 other case say it throughout. We have alleged -- we

16 have alleged independent negligence, Your Honor --

17 independent negligence in the performance of the duties

18 that they undertook to perform under the shared services

19 agreement.

20 THE COURT: Let's talk about the

21 preemptive regulations and statutes regarding workmen's

22 comp law in Kansas. How is this going to separate

23 itself from the workmen's compensation claim? And I

24 presume there was an award in Kansas that would preempt

25 any causes of action that could be lodged elsewhere.

Mary Nancy Capetillo, CSR, RPR, CRR

25

Reporter's Record

August 7, 2015

1 MR. TATE: First of all, he will have to

2 prove that under-- first of all, he'll have to prove

3 that Kansas law applies; and he attempted that, by the

4 way, in the other case down in Judge Shoemake's court in

5 his summary judgment; and his summary judgment was

6 denied. He tried to prove the law of lex loci. He has

7 got another motion pending that hasn't been specifically

8 ruled on to determine the local law that will apply.

9 But first of all, he's got to apply -- prove that Kansas

10 law, not Texas law, will apply which he hasn't done yet.

11 Secondly, even if he proves that Kansas

12 law will apply, he's got to prove that these two

13 non-employer entities -- these are not employers -- are

14 entitled to the benefit of Kansas law. The employer,

15 Your Honor, is the refinery on the ground there which is

16 Coffeyville Resources Refining & Marketing, Inc. It is

17 60 percent owned by the limited partnership which is

18 100 percent owned by --

19 THE COURT: Clarify this: The Sugar Land

20 operation under the operating agreement that you have

21 cited stands in the shoes of the local operating

22 authority or operating managers for the Colleyville

23 refinery. Is that what you're saying?

24 MR. TATE: No, I'm not saying it stands in

25 the shoes at all. I'm saying it has the authority and

Mary Nancy Capetillo, CSR, RPR, CRR

26

Reporter's Record

August 7, 2015

1 the responsibility because it has assumed that to

2 control -- and it does control the local plant, but that

3 does not make it the employer. The employer is still

4 the company that he works for, the local plant up in

5 Kansas. So whether or not he gets the benefit of the

6 Kansas workers' comp -- whether or not the two

7 defendants that they're alleging here will be entitled

8 to the benefit of the Kansas workers' compensation law

9 is a determination you will make when you make the

10 determination of which law applies; and then once you

11 decide which law applies, if it's Kansas law, you will

12 apply Kansas law.

13 And one point I really wanted to make,

14 it's always interesting to me that a Kansas lawyer will

15 come into a Texas courtroom --

16 THE COURT: By the way, I like Kansas

17 lawyers. I've dealt with a lot of them.

18 MR. TATE: I like Kansas lawyers too.

19 MR. SMITHYMAN: On behalf of Kansas, we

20 thank you, Your Honor.

21 MR. TATE: I like Kansas lawyers too

22 because every time he comes in here he contributes $500

23 to the Access to Justice Foundation, which you know is

24 dear to my heart.

25 Okay. But, Your Honor, a Kansas lawyer

Mary Nancy Capetillo, CSR, RPR, CRR

27

Reporter's Record

August 7, 2015

1 comes before you and argues Texas law to tell you, a

2 Texas judge, that you will be in some way handicapped in

3 applying Kansas law. If a Kansas lawyer is not

4 handicapped in arguing Texas law to you, why would you

5 be handicapped in applying Kansas law? You're not.

6 That makes no sense to me.

7 MR. SMITHYMAN: I'll stipulate I'm not as

8 good as a Texas lawyer would be in arguing my points.

9 MR. TATE: But this is specifically a

10 case, Your Honor, where they have chosen -- the CVR

11 entities have chosen to locate in Sugar Land. They're

12 both publicly traded companies, and they've chosen to

13 locate in Sugar Land; and they have chosen to control

14 the day-to-day operations of their operating

15 subsidiaries. They have chosen to do that. They are

16 not the employer. They would not be entitled to

17 workers' compensation protection; and all of their

18 decisions, Your Honor, that we are going to challenge

19 were made here in Sugar Land.

20 There are four management witnesses here

21 in Sugar Land that we deposed in the other case; we'll

22 be deposing them in this case. we had no problem no

23 problem with depositions in Oklahoma in the other in

24 the other refinery explosion down in Judge Shoemake's

25 court. None. Most of those -- many of those people

Mary Nancy Capetillo, CSR, RPR, CRR

28

Reporter's Record

August 7, 2015

1 work for them, and they can get them to come up here for

2 a deposition if they want to. In fact, if they work for

3 them, they can bring them down here live if they want

4 to. So this argument about the inconvenience of the

5 witnesses, again, with all the number of cases we've

6 tried in this court over the years with witnesses all

7 over the world, it's just not -- it's not a serious

8 factor to be considered in this case.

9 Now, as to ENSCO and BPZ, if the Court --

10 and I know you always read the cases; but in both ENSCO

11 and BPZ, the emphasis there was how much it was going to

12 cost to go to Australia and get witnesses, how much it

13 was going to cost to go to Peru and get witnesses. In

14 this case we -- it's going to cost us, the plaintiffs,

15 more because if we have to take a Kansas deposition,

16 Mr. Riebschlager, Justice Medina, or I are going to have

17 to go up there to Kansas to take the depositions. He's

18 there already. He doesn't even have to go. He's there.

19 And so it's actually more convenient.

20 And then with respect to Sugar Land, we're

21 going to go and take the depositions of the Sugar Land

22 people wherever they tell us to, likely in Mr. Sharp's

23 office in Houston. Even though I detest crossing the

24 Brazos to go take depositions, for Mr. Sharp I'll do it.

25 But the point of the matter is, Your

Mary Nancy Capetillo, CSR, RPR, CRR

29

Reporter's Record

August 7, 2015

1 Honor, this is all about decisions made in Sugar Land by

2 executives in Sugar Land who because they've -- the

3 record will show they've been in the course of preparing

4 for, of making acquisitions, and being acquired by Carl

5 Icahn or being involved in various public trading

6 activities, they have chosen to make -- to defer

7 expenditures. They have chosen to put workers of their

8 subsidiaries at risk. And, frankly, Your Honor, they

9 should be held responsible for those choices; and it is

10 certainly under no circumstances unfair to make them

11 face a Fort Bend County jury of their neighbors in doing

12 so.

13 THE COURT: As just a matter of

14 clarification, what are the differences between this

15 particular case and the case in the 434th? Both parties

16 understanding, I'm not bound by any rulings of the

17 434th.

18 MR. TATE: None at all except that it was

19 at a different refinery. That one -- well, at that one

20 there was a boiler explosion at the Wynnewood refinery.

21 This one is a fire that occurred in a hydrogen separator

22 at the Coffeyville refinery. But -- and, Your Honor,

23 the liability facts as to what caused the accident,

24 those aren't even going to be contested. It's -- you

25 know, the real contest in this case is whether or not

Mary Nancy Capetillo, CSR, RPR, CRR

30

Reporter's Record

August 7, 2015

1 the Sugar Land people are responsible.

2 In both cases liability is going to be

3 crystal clear, and the question is simply going to be:

4 Is the -- are the parent companies located here in Sugar

5 Land that have chosen to manage the day-to-day

6 operations responsible for their independent negligence

7 in causing these accidents?

8 THE COURT: Do you want to answer that

9 question?

10 MR. SMITHYMAN: I want to answer. Yes, I

11 do.

12 THE COURT: Okay.

13 MR. SMITHYMAN: Very quickly. The only

14 argument I heard why there's any responsibility here is

15 a shared services agreement between CVR Energy and

16 subsidiaries. Primarily if you look at what they've

17 submitted to you between them and the general partner or

18 the limited partnership -- and that's the shared

19 services agreement-- I'm not sure that these plaintiffs

20 are third-party beneficiaries to that contract. I don't

21 see how they would be or how they can rely upon that

22 issue.

23 More important, you know, there is a --

24 there is obviously some truth to the fact that we can

25 get some of those employees here reasonably easily.

Mary Nancy Capetillo, CSR, RPR, CRR

31

Reporter's Record

August 7, 2015

1 Okay. That's the truth, but we can't for EMS people.

2 We can't for the police. We can't for the physicians.

3 We can't for those that have -- that have retired that

4 have seen things, that have moved from the company; and

5 there's been a lot that have moved from the company on a

6 yearly basis, and we're learning that in the other case.

7 The other case has a number of differences

8 here, but the most important one for you is the

9 simplest. There was no motion to dismiss for forum

10 non conveniens in the earlier case; and there's a time

11 limit on that, and it's a 180-day time limit. And if

12 you realize how really inconvenient it has been, then

13 you shouldn't be damned to the same mistake each time a

14 case is filed in Sugar Land -- in Sugar Land. None of

15 those go to the main issue before you, Your Honor; and I

16 think the last two pages of my supplemental brief --

17 three pages -- address those issues.

18 Mr. Tate just argued that it was decisions

19 concerning the budgeting or decisions on a macro level

20 in Sugar Land that were the cause of the pump failure --

21 rotating pump failure in Coffeyville at the refinery.

22 Those same arguments were made in In Re: BPZ. I was

23 thrilled to hear that you read these cases. Because in

24 In Re: BPZ here is what the Court of Appeals said: We

25 presume without deciding that the relators' decisions in

Mary Nancy Capetillo, CSR, RPR, CRR

32

Reporter's Record

August 7, 2015

1 Houston were the legal cause of the explosion when they

2 allegedly ordered production on the platform to be

3 ramped up to quickly generate needed cash. Even though

4 they knew these operations involved dangerous

5 procedures, insufficient equipment, unworthy --

6 unseaworthy vessels, nevertheless, the acts and

7 omissions in Texas would be a more remote cause of the

8 real parties' injuries than the alleged acts and

9 omissions in Peru.

10 And, Your Honor, the first district -- the

11 first panel in the Mantle case did the exact same thing.

12 They said: The Alcee, meaning these are the Louisiana

13 plaintiffs, assumed that because Mantle Oil was the well

14 operator and made big decisions concerning operations of

15 the Louisiana well at its Texas headquarters their

16 injuries were undoubtedly caused by Mantle's acts and

17 omissions that occurred in Kansas.

18 Essentially they said: Although big

19 decisions were made, obviously a lot of smaller

20 decisions were not made; and on the basis of that, they

21 too determined that any decisions that would be made

22 here in the macro scheme of things were remote compared

23 to Louisiana; and Louisiana had the -- was the

24 appropriate forum and had the right to resolve those

25 issues between its residents and the operations that

Mary Nancy Capetillo, CSR, RPR, CRR

33

Reporter's Record

August 7, 2015

1 were there. And that's how the First -- that's how our

2 First Circuit panel decided it in both cases.

3 That's exactly what Mr. Tate is arguing.

4 Decisions made at the macro level by a parent somehow

5 create liability that would allow jurisdiction to

6 appropriately be here -- well, jurisdiction is here, but

7 that allow the case to be tried here. In fact, in both

8 cases this statute, 71.051, and the consideration of

9 those factors has been determined that macro decisions

10 by a parent are insufficient where all other factors

11 say: Go to the jurisdiction of the accident.

12 MR. TATE: And what I'm arguing is they're

13 not macro. They're micro decisions, and that's a fact

14 issue which he brought up on summary judgment in the

15 other case and lost.

16 MR. SMITHYMAN: Actually could I address

17 that?

18 THE COURT: That's all right, Counsel.

19 I've heard enough. On the issue that I have to decide

20 on today, I'm going to deny your motion.

21 (Proceedings concluded at 10:04 a.m.)

22

23

24

25

Mary Nancy Capetillo, CSR, RPR, CRR

34

1 THE STATE OF TEXAS

2 COUNTY OF FORT BEND

3 I, Mary Nancy Capetillo, CSR, Deputy Court Reporter

4 in and for the 268th District Court of Fort Bend County,

5 State of Texas, do hereby certify that the above and

6 foregoing contains a true and correct transcription of

7 all portions of evidence and other proceedings requested

8 in writing by counsel for the parties to be included in

9 this volume of the Reporter's Record in the above-styled

10 and numbered cause, all of which occurred in open court

11 or in chambers and were reported by me.

12 I further certify that this Reporter's Record of the

13 proceedings truly and correctly reflects the exhibits,

14 if any, admitted, tendered in an offer of proof or

15 offered into evidence.

16 I further certify that the total cost for the

17 preparation of this Reporter's Record is $ 324.00 and

18 was paid by Smjthyman & Zakoura, Chartered

19 WITNESS MY OFFICIAL HAND on this, the 14th day of

_ _ _ _ _,L.;ALWu~gust ' 2015 •

20

21

22

M~~~lo,

Expiration: 12/31/2016

Texas CSR No. 3698

Deputy Court Reporter

23 7022 Bois D'Arc Lane

Richmond, Texas 77406

24 Telephone: (281) 344-7973

25

Mary Nancy Capetillo, CSR, RPR, CRR

Tab3

Page 1 of3

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REGISTER OF ACTIONS

CASE No. 15-DCV-220330

Donald R Collier, Jennfler J Collier, Dale A Neimeyer and Wendy § Case Type: Injury or Damage - Other Injury

Neimeyer vs CVR Energy Inc. and CVR Refllnlng, LP. § or Damage

§ Date Filed: 01/1212015

§ Location: 268th District Court

§

PARTY (NFORI\fATION

Attorneys

Defendant or CVR Energy Inc. Lee M Smlthyman

Respondent Retained

Dallas, TX 75201-3136

Phillip D. Sharp

Retained

713-223-2900(W)

Defendant or CVR Refining, LP Lee M Smlthyman

Respondent Retained

Austin, TX 78701

Phillip D. Sharp

Retained

713-223-2900(W)

Plaintiff or Collier, Donald R Gary M. Rlebschlager

Petitioner Retained

Houston, TX 77002

281-904-1404(W)

Plaintiff or Collier, Donald R. Richard L. Tate

Petitioner Retained

281-341-0077(W)

Plaintiff or Collier, Jennfler J Gary M. Rlebschlager

Petitioner Retained

Houston, TX 77002

281-904-1404(W)

Plaintiff or Neimeyer, Dale A Gary M. Rlebschlager

Petitioner Retained

Houston, TX 77002

281-904-1404(W)

Plaintiff or Neimeyer, Wendy Gary M. Rlebschlager

Petitioner Retained

Houston, TX 77002

281-904-1404(W)

EVENTS & ORDERS OF THE COURT

OTHER EVENTS AND HEARINGS

01/1212015 Docket Sheet

Docket Sheet

01/1212015 Petition Doc ID# 1

Plaintiff's Original Petition

01/1212015 Jury Fee Paid

Jury Demand Fee Paid

01/13/2015 Issuance Doc ID# 2

Citation Issued to CVR Energy Inc.

01/1312015 Citation

Mailed to Atty

CVR Energy Inc. Unserved

01/13/2015 Issuance Doc ID# 3

Citation Issued to CVR Refining LP

01/1312015 Citation

Mailed to Atty

CVR Refilning, LP Unserved

01/1312015 Letters

Form Letter

04/0812015 ~ Doc ID# 4

Request for Process

04/0912015 Issuance Doc ID# 5

http://tylerpaw.co.fort-bend.tx.us/CaseDetail.aspx?CaseiD=l439943 8/19/2015

Page 2 of3

Citation by CM Issued to CVR Energy Inc

04/09/2015 Citation by Certified Mall

CMRRR 7196 9008 9115 6076 0290

CVR Energy Inc. Returned Unserved 04/20/2015

Returned 04/2012015

04/09/2015 ~ Doc 10# 6

Citation by CM Issued to CVR Refining LP

04/09/2015 Citation by Certified Mall

CMRRR 7196 9008 9115 6076 0313

CVR Refiinlng, LP Unserved

05/14/2015 Issuance Doc 10# 7

(Re-Issued) Citation By Certified Mall Issued to CVR Refining LP

05/1412015 Citation by Certified Mall

(Re-Issued) CMRRR# 9414 7266 9904 2956 2259 38

CVR Refllnlng, LP Served 05/1812015

Returned 05/2812015

05/14/2015 ~ DociD#B

(Re-Issued) Citation By Certified Mall Issued to CVR Energy Inc.

05/14/2015 Citation by Certified Mall

(Re-Issued) CMRRR# 9414 7266 9904 2956 2259 21

CVR Energy Inc. Served 05/18/2015

Returned 05/2212015

05/28/2015 Answer/ContesUResponse/Walver Doc 10# 9

Defendants CVR Energy, Inc. and CVR Refining, LP's Original Answer

06/01/2015 No Fee Documents Doc 10# 10

Plaintiffs' Special Exceptions to Defendants CVR Energy, Inc. and CVR Refining, LP's Original Answer

06/01/2015 Proposed Order Doc ID# 11

(Returned Unsigned 06/0512015)0rder Granting Plaintiffs Special Exceptions to Defendants CVR Energy, Inc. and CVR Refining, LP's Original

Answer

06/0112015 Motion <No Feel Doc 10# 12

Defendants' Motion to Dismiss Based on Forum Non Conveniens

06/01/2015 No Fee Documents Doc 10# 13

Memorandum In Support of Defendants' Motion to Dismiss Pursuant to Texas Civil Practice & Remedies Code Chapter 71.051

06/0212015 Motion INo Fee> Doc 10# 15

Motion of Phillip D. Sharp to Admit Lee M. Smithyman Pro Hac Vice for the Sole Purpose of This Case

06/0412015 Order Doc ID# 14

Order Granting Pro Hac Vice Motion

0612312015 ~ Docl0#16

Notice of Hearing

07/2112015 ~ Doc 10# 17

Amended Notice of Hearing

0712412015 CANCaED M/Hearlng (9:00AM) (Judicial Officer Elliott. Brady G)

Passed

DEFENDANrS MOTION TO DISMISS BASED ON FORUM NON CONVENIENS

0810412015 No Fee Documents Doc 10# 18

Supplemental Memorandum in Support of Defendants' Motion to Dismiss Pursuant to Texas Civil Practice &Remedies Code Chapter 71.051

08/05/2015 AnsweriContesUResponse/Walver Doc 10# 19

Plaintiff's Response to Defendants' Motion to Dismiss Pursuant to Texas Civil Practice &Remedies Code Chapter 71.051

08/07/2015 M/Hearlng (9:00AM) (Judicial Officer Elliott, Brady G)

DEFENDANrS MOTION TO DISMISS BASED ON FORUM NON CONVENIENS

08/07/2015 No Fee Documents Doc 10# 20

Plaintiffs' Supplemental Petition

FINANCIAL INFORMATION

Defendant or Respondent CVR Energy Inc.

Total Financial Assessment 16.00

Total Payments and Credits 16.00

Balance Due as of 0811912015 0.00

05/28/2015 Transaction Assessment 2.00

05128/2015 E-filing Receipt# 2015-28318-DCLK CVR Energy Inc. (2.00)

06/0212015 Transaction Assessment 2.00

06/0212015 E-fillng Receipt# 2015-29082-DCLK CVR Energy Inc. (2.00)

06/0212015 Transaction Assessment 2.00

06/0212015 E-fillng Receipt# 2015-29083-DCLK CVR Energy Inc. (2.00)

06/0212015 Transaction Assessment 2.00

06/0212015 E-fillng Receipt# 2015-29496-DCLK CVR Energy Inc. (2.00)

06/0212015 Transaction Assessment 2.00

06/0212015 E-fillng Receipt# 2015-29497-DCLK CVR Energy Inc. (2.00)

06/2312015 Transaction Assessment 2.00

06/23/2015 E-fillng Receipt# 2015-33899-DCLK CVR Energy Inc. (2.00)

07/2212015 Transaction Assessment 2.00

07/22/2015 E-fillng Receipt# 2015-39517-DCLK CVR Energy Inc. (2.00)

08104/2015 Transaction Assessment 2.00

0810412015 E-fillng Receipt# 2015-41956-DCLK CVR Energy Inc. (2.00)

Plaintiff or Petitioner Collier, Donald R

I

Total Financial Assessment 730.00

http://tylerpaw.co.fort-bend.tx.us/CaseDetail.aspx?CaseiD=l439943 8119/2015

Page 3 of3

Total Payments and Credits 730.00

Balance Due as of 08/19/2015 0.00

01/1212015 Transaction Assessment 518.00

01/12/2015 E-filing Receipt# 2015-01543-DCLK Collier, Donald R (518.00)

04/09/2015 Transaction Assessment 206.00

04/09/2015 E-filing Receipt# 2015-1 8309-DCLK Collier, Donald R (206.00)

06/01/2015 Transaction Assessment 2.00

06/01/2015 E-filing Receipt# 2015-28888-DCLK Collier, Donald R (2.00)

08/06/2015 Transaction Assessment 2.00

08/06/2015 E-filing Receipt# 2015-42204-DCLK Collier, Donald R (2.00)

08/07/2015 Transaction Assessment 2.00

08/07/2015 E-filing Receipt# 2015-42462-DCLK Collier, Donald R (2.00)

http://tylerpaw.co.fort-bend.tx. us/CaseDetail.aspx?CaseiD= 1439943 8119/2015

Page 1 of 1

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Questions and Answers on Images

CASE NO. 15-DCV-220330

DONALD R COLLIER, JENNFIER J COLLIER, DALE A NEIMEYER AND WENDY

NEIMEYER VS CVR ENERGY INC. AND CVR REFIINING, LP.

Selected Event Image Page Count

01/12/2015 Docket Sheet Docket Sheet 2

Other Events on This Case Image Page Count

01/1212015 Petition Plaintiffs Original Petition 14

01/13/20151ssuance Issuance 1

01/13/20151ssuance Issuance 1

01/13/2015 Letters Letters 1

04/08/2015 Request Request for Process 2

04/09/2015 Issuance Issuance 2

Certified Mail Receipt for CVR Eneray Inc. 2

Issuance 4

04/09/20151ssuance Issuance 2

Certified Mail Receipt for CVR Refining LP 2

Issuance - Citation by Certified Mail Issued to CVR

4

Refining Returned Unserved

Issuance - <Re-Issued> Citation By Certified Mail

05/14/20151ssuance 2

Issued to CVR Refining LP

Issuance 2

Issuance 2

Issuance - <Re-Issued) Citation By Certified Mail

05/14/20151ssuance 2

Issued to CVR Energy Inc.

Issuance 2

Issuance 2

Defendants CVR Energy. Inc. and CVR Refining LP's

05/28/2015 Answer/Contest/Response/Waiver 3

Original

06/01/2015 No Fee Documents Special Exceptions 4

06/01/2015 Proposed Order Proposed Order 2

Defendants' Motion to Dismiss Based on Forum Non

06/01/2015 Motion (No Fee) 3

Conveniens.

Memorandum in Sypport of Defendants' Motion to

06/01/2015 No Fee Documents 17

Dismiss Pyrsu

Motion of Phillip D. Sharp to Admit Lee M. Smithyman

06/02/2015 Motion (No Fee) 9

Pro Hac

06/04/2015 Order Order - Order Granting Pro Hac Vice Motion 1

06/23/2015 Notice Notice of Hearing 2

07/2112015 Notice Amended Notice of Hearing 2

Amended Notice of Hearing 2

SuPplemental Memorandum in Support of Defendants'

08/04/2015 No Fee Documents 27

Motion to

08/05/2015 Answer/Contest/Response/Waiver Collier Nei 08 05 15 Response Mtn Dismiss. pdf 66

08/07/2015 No Fee Documents Plaintiffs' Supplemental Petition 2

Other Images on This Case Image Page Count

http://tylerpaw.co.fort-bend.tx.us/CaseDocuments.aspx?CaselD=l439943&EventiD=1666... 8/19/2015

Tab4

Filed

1/12/201511:34:37 AM

Ann1e Rebecca Elliott

District Clerk

Fort Bend County, Texas

SoonyGarcia

CAUSE NO. 15-DCV-220330

DONALD R COLLIER, JENNIFER J. § IN THE DISTRICT COURT OF

COLLIER, DALE A NIEMEYER, and §

WENDY NIE:MEYER §

Plaintiffs, §

v. § FORT BEND COUN1Y, TEXAS

§

~ Fort Bend County - 268th Judicial District Court

CVR ENERGY, INC. and,

CVR REFINING, LP.

Defendants. § JUDICIAL DIS1RICT

PLAINTIFFS' ORIGINAL PETITION

TO TilE HONORABLE COURT:

COME NOW, Plaintiffs DONALD R. COLLIER, JENNIFER J. COLLIER, DALE A.

NIEMEYER and WENDY NIEMEYER complaining of and against CVR ENERGY, INC. and

CVR REFINING, LP (hereinafter collectively referred to "CVR"); Defendants herein, and for

cause of action, would respectfully show unto the Court as follows:

I. DISCOVERY CONTROL PLAN

1. Plaintiffs intend to conduct discovery under Level 3 pursuant to Rule 190.3 of the

Texas Rules of Civil Procedure.

ll. PARTIES

2. Plaintiff DONALD R. COLLIER, is an individual who resides in Independence,

Kansas.

3. Plaintiffs JENNIFER J. COLLIER, is an individual who resides in Independence,

Kansas.

4. Plaintiff DALE A NffiMEYER, is an individual who resides inS. Coffeyville,

Oklahoma.

5. Plaintiff WENDY NIEMEYER, is an individual who resides in S. Coffeyville,

Oklahoma.

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6. Defendant CVR ENERGY, INC. (hereinafter referred to as "CVR") is a Delaware

corporation with its principal place of business located in Fort Bend County, Texas. Defendant

may be served with process by serving citation on its Registered Agent C. T. Corporation

System, 350 North St. Paul Street, Suite 2900, Dallas, Texas 75201.

7. Defendant CVR Refming, LP (hereinafter referred to as "CVR Refming'') is a

Delaware corporation with its principal place of business located in Fort Bend County, Texas.

Defendant may be served with process by serving citation on its Registered Agent CSC,

Corporation Service Company, 211 East 'Ph Street, Suite 620, Austin, Texas 78701.

m. JURISDICfiON AND VENUE

8. Plaintiffs seek damages within the jurisdictional limits of this Court.

9. This Court has personal jurisdiction over defendants because each of the

Defendants has its principal place of business in Fort Bend County, Texas and all Defendants are

engaged in foreseeable, intentional, continuous, and/or systematic contacts within Texas, so that

there is both general and specific personal jurisdiction.

10. Furthermore, exercising jurisdiction over those Defendants based outside of Texas

will not offend the notions of fair play and substantial justice.

11. Venue is proper in Fort Bend County, Texas pursuant to TRCP § 15.002(a) (3)

because it is the county of the defendant's principal office in this state.

IV. BACKGROUND AND FACfS

12. Plaintiffs are employees of Defendant Coffeyville Resources Refming &Marketing,

LLC (hereafter referred to as "CRRM"). CRRM is a wholly-owned subsidiary and controlled by

Defendants CVR Refming LP, CVR Refining, LLC, and CVR Energy, Inc. (hereafter referred to as

"CVR'').

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13. Plaintiffs, as employees ofCRRM, worked at an oil refinery in Coffeyville, Kansas,

hereafter referred to as the Coffeyville Refinery or the Refinery. The Coffeyville Refinery is owned

and controlled by CVR.

14. On July 29, 2014, a critical leak occurred on a pump in the Isometric Unit of the

Refmery. A huge, fiery explosion resulted, severely injuring Plaintiffs and causing the death of

another employee, Greg Rigdon.

V. CAUSE OF ACTION-NEGLIGENCE

Relationship ofCRRM and CVR

15. Plaintiffs incorporate, by reference to paragraphs two (2) through fifteen (15)

herein, their previous allegations.

16. CRRM is a wholly-owned subsidiary of CVR Refining LP, and ultimately, up the

corporate chain, a wholly-owned subsidiary of CVR Energy, LLC.

17. CVR Energy, Inc., and CVR Refming, LP ("CVR Refining") collectively

own/control CRRM. CVR are parent companies of CRRM. The CVR companies are created as a

vast web of corporate control and direction created for the sole purpose of maximizing profit,

corporate greed and veiled legal attempts to protect themselves from their own negligence.

18. CVR controls CRRM in one or more of the following methods:

a CVR owns all or most of CRRM stock;

b. CVR and CRRM have common directors and officers;

c. CVR provides financing to CRRM;

d. CVR subscribes to all of CRRM's stock;

e. CRRM is Wldercapitalized without CVR;

f. CVR refers to CRRM as its subsidiary, division or department;

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g. CRRM's officers or directors follow direction from CVR; and

h. the legal formalities for keeping these entities (CVR and CRRM) separate and

independent are observed.

CVR is the collective, dominant corporation over CRRM, their wholly-owned subsidiary

and is therefore liable for the torts of its wholly-owned subsidiary.

19. On the occasion in question, CVR, by and through their officers, employees,

agents and representatives, independently committed acts of omission and commission which

collectively and severally constitute negligence that proximately caused the deaths of Plaintiffs'

decedents and damages to Plaintiffs. CVR failed. CVR's failure is negligence as defined above.

VI. CAUSE OF ACIION-GROSS NEGLIGENCE

20. Plaintiffs incorporate, by reference to paragraphs two (2) through nineteen (19)

herein that additionally, Defendants' acts involved an extreme degree of risk to Donald R.

Collier and Dale A Niemeyer, considering the probability and magnitude of the potential bann

to others, especially in light of certain facts which were known to Defendants before Donald R.

Collier and Dale A Niemeyer sustained severe and disabling injuries.

21. Defendants' acts and omissions are of such a character as to lead to the conclusion

that they not only constitute negligence, but rise to the level of gross negligence/malice.

Defendants acted with conscious indifference to the rights, safety, and welfare of Donald R.

Collier and Dale A Niemeyer, and proximately caused their injuries through the enumerated acts

or omissions.

VDI. CHOICE OF LAW- TEXAS

22. The corporate domicile of the CVR Defendants is Sugar Land, Texas. The acts of

negligence and gross negligence of Defendants CVR occurred in Texas by and through its

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corporate officers, directors and employees in Texas. Defendants CVR seek all benefrts and

protections ofTexas law. Texas has a vested interest in the conduct of its corporate citizens.

IX. DAMAGES

23. As a result of the Defendants' actions, each Plaintiff has been deprived of the

care, maintenance, support, services, advice, counsel, and contributions of a pecuniary value, as

well as companionship and society, including love and comfort as a result of the injuries of

DONALD R. COLLIER and DALE A NIEMEYER. Further, Plaintiffs have suffered pecuniary

losses, in the past, have experienced and will continue to experience immense mental anguish,

suffering and grief in the future. Plaintiffs seek all damages available for the injuries of

DONALD R. COLUER and DALE A. NffiMEYER.

24. The Defendants ·have been guilty of reckless disregard for the rights of others,

have acted intentionally and with malice towards others and engaged in conduct life-threatening

to humans. Plaintiffs are, therefore, entitled to an award of punitive damages.

X.CONDITIONSPRECEDENT

25. All conditions precedent to Plaintiffs' right to recover herein and to Defendants'

liability have been performed or have occurred.

XI. .WRY DEMAND

26. Plaintiffs demand that all issues of fact in this case be tried to a properly

impaneled jury.

XII. REQUEST FOR DISCLOSURE

27. Plaintiffs request all infonnation be provided pursuant to Texas Rule of Civil

Procedure 194.2.

XID. CONCLUSION AND PRAYER

s

28. WHEREFORE, PREMISES CONSIDERED, Plaintiffs pray that, after trial on the merits,

Plaintiffs obtain judgment against Defendants for the following:

i. monetary relief over $1,000,000.00;

j. pre-judgment and post-judgment interest thereon at 1he maximum legal rate;

k. costs of Court; and

l. such o1her and further reliefto which Plaintiffs may be justly entitled.

Respectfully submitted,

THE RIEBSCHLAGER LAW FIRM, PC

801 Congress, Suite 250

Houston, TX 77002

Telephone: 281 904-1404

Email: ~..::a=~=.:.:~~~:~::..:~~~

/s/Garv M. Riebschlager

GARY M. RIEBSCHLAGER

Texas BarNo. 16902200

TATEMOERER&KING, LLP

RICHARD L. TATE

State Bar No. 19664460

Email:lrltate@tate-law.coml

KRISTIN

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