# Penn Virginia Oil & Gas GP, LLC and Penn Virginia Oil & Gas L.P. v. Alfredo De La Garza, Individually and as Next Friend for I. D. L. G. and K. D. L. G., Minors, and John Paul Adame, Individually and A/N/F for C.A.A., J.P.A., Jr., and J.N.A.

> Texas Court of Appeals, 1st District (Houston) · November 24, 2015

URL: https://www.frixlaw.com/law-library/cases/4073762

## Case

- **Court:** Texas Court of Appeals, 1st District (Houston)
- **Decided:** November 24, 2015
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4073762

## How later opinions describe it (automated extraction)

- holding that FAA preempted Texas Arbitratìon Act's requirement that party's attorney sign agreement
- holding that FAA preempted Texas Arbitratìon Act's requirement that party's attorney sign agreement

## Opinion text

ACCEPTED
01-15-00867-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
11/24/2015 10:18:56 AM
CHRISTOPHER PRINE
CLERK

NO. 01-15-00867-CV

FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
FIRST COURT OF APPEALS
11/24/2015 10:18:56 AM
HOUSTON, TEXAS CHRISTOPHER A. PRINE
Clerk

PENN VIRGINIA OIL & GAS GP, L.L.C. & PENN VIRGINIA OIL AND
GAS L.P., Appellants.
V.
ALFREDO DE LA GARZA, INDIVIDUALLY AND AS NEXT OF FRIEND
FOR XXXXXX XX XX XXXXX AND XXXXXXXX XX XX XXXXX,
MINORS
&
JOHN PAUL ADAME, INDIVIDUALLY AND AS NEXT OF FRIEND OF
XXXXXXXXX XXXXXX XXXXX, XXXX XXXX XXXXX, XXX, AND
XXXX XXXXXXXX XXXXX, MINORS,
Appellees.

On Appeal from the 215TH Judicial District Court,
Harris County, Texas
Cause No. 2014-42519

APPELLANTS’ RESPONSE TO APPELLEE’S
MOTION TO DISMISS

To the Honorable Justices of the First Court of Appeals:

Appellants, Penn Virginia Oil & Gas GP, LLC and Penn Virginia Oil & Gas,

L.P. (collectively “Penn Virginia”) file this Response to Appellee Alfredo De La
Garza’s Motion to Dismiss. In support thereof, Penn Virginia would respectfully

show this Honorable Court as follows:

1. In his Motion at paragraphs 5 and 6, Appellee argues that Penn

Virginia’s appeal should be dismissed because Penn Virginia filed its Notice of

Appeal outside of the 20 day deadline to do so under Texas Rule of Appellate

Procedure 28.1, and that Penn Virginia failed to “reasonably explain the need for

an extension” in its Motion for Extension of Time to File Notice of Appeal. (See

Penn Virginia’s Motion for Extension of Time to File, attached as Exhibit A, and

Penn Virginia’s Reply to Appellees’ Objection, attached as Exhibit B.)

2. Rather than reiterate all of the arguments made and facts asserted in

Penn Virginia’s underlying Motion for Extension of Time to File and Penn

Virginia’s Reply to Appellees’ Objection to same, Penn Virginia would simply

direct this Court to those Motions and the affidavits submitted in support of same,

all of which are attached to this Response as Exhibits A and B, and which are on

file with this Court. Penn Virginia would show further that this Court has not

denied Penn Virginia’s Motion for Extension, therefore, there has been no judicial

determination that the Court lacks jurisdiction as a result of the date of filing. That

is to say, if this Court grants Penn Virginia’s Motion for Extension to File, then

Penn Virginia’s Notice of Appeal filed on October 13, 2015 will be considered

timely filed and there will be no question as to jurisdiction.
CONCLUSION & PRAYER

In light of the foregoing, Appellants, Penn Virginia Oil & Gas GP, LLC and

Penn Virginia Oil & Gas, L.P. pray that this Court deny Appellee’s Motion to

Dismiss. Penn Virginia further prays for such other and further relief, both special and

general, at law and in equity, to which it may be justly entitled.

Respectfully submitted,

GALLOWAY, JOHNSON, TOMPKINS
BURR & SMITH

/s/ Thomas J. Smith
Thomas J. Smith
State Bar No. 00788934
tsmith@gallowayjohnson.com
Kelly C. Hartmann
State Bar No. 24055631
khartmann@gallowayjohnson.com
Alexis B. Hester
State Bar No. 24072807
ahester@gallowayjohnson.com
1301 McKinney, Suite 1400
Houston, Texas 77010
(713) 599-0700
(713) 599-0777 – facsimile

ATTORNEYS FOR APPELLANTS, PENN
VIRGINIA OIL & GAS GP, LLC AND
PENN VIRGINIA OIL & GAS, L.P.
CERTIFICATE OF SERVICE

I hereby certify that, in accordance with Rule 9.5 of the Texas Rules of
Appellate Procedure, I have served the foregoing document upon the following
attorneys by electronic service, personal mail, by commercial delivery service or
by fax on November 24th, 2015:

John David Hart J. Javier Gutierrez
LAW OFFICES OF JOHN DAVID HART Ana Laura Gutierrez
Wells Fargo Tower THE GUTIERREZ LAW FIRM, INC.
201 Main Street, Suite 1720 700 East Third Street
Fort Worth, Texas 76102 Alice, Texas 78332
Phone 817-870-2102 Phone 361-664-7377
Fax 817-332-5858 Fax 361-664-7245
Counsel for Appellee, Alfredo Counsel for Appellee, John Paul
De La Garza and his minor children Adame and his minor children

/s/ Kelly C. Hartmann
Kelly C. Hartmann
ACCEPTED
01-15-00867-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
10/14/2015 4:27:54 PM
CHRISTOPHER PRINE
CLERK

NO. 01-15-00867-CV

FIRST COURT OF APPEALS
HOUSTON, TEXAS

PENN VIRGINIA OIL & GAS GP, L.L.C. & PENN VIRGINIA OIL AND
GAS L.P., Appellants.
V.
ALFREDO DE LA GARZA, INDIVIDUALLY AND AS NEXT OF FRIEND
FOR XXXXXX XX XX XXXXX AND XXXXXXXX XX XX XXXXX,
MINORS
&
JOHN PAUL ADAME, INDIVIDUALLY AND AS NEXT OF FRIEND OF
XXXXXXXXX XXXXXX XXXXX, XXXX XXXX XXXXX, XXX, AND
XXXX XXXXXXXX XXXXX, MINORS,
Appellees.

On Appeal from the 215TH Judicial District Court,
Harris County, Texas
Cause No. 2014-42519

MOTION FOR EXTENSION OF TIME TO FILE NOTICE OF APPEAL

To the Honorable Justices of the First Court of Appeals:

Appellants, Penn Virginia Oil & Gas GP, LLC and Penn Virginia Oil & Gas,

L.P. (collectively “Penn Virginia”) file this Motion for Extension of Time to File

EXHIBIT "A"
Notice of Appeal pursuant to Rules 26.3 and 10.5(b)(2). In support thereof, Penn

Virginia would respectfully show this Honorable Court as follows:

I. FACTUAL SUMMARY

1. This appeal arises out of a September 11, 2015 Order denying

Appellant’s Motion to Compel Arbitration and to Abate, which was filed in the

215th Judicial District Court of Harris County, Texas.1 The underlying litigation,

which is currently set for trial on May 31, 2016, involves an April 29, 2014 oilfield

incident near Shiner, Texas, in which two employees of Nabors Completion &

Productions Services Co. (“NCPS”) were injured when an improperly constructed

high pressure flow line parted and caused the sudden release of pressurized gas.

The two employees (now, Appellees) were standing near the flow line when the

line separated. NCPS was a well site contractor that had been hired by Penn

Virginia, the operator, to perform workover operations. Both Appellees were

members of the NCPS day crew.

2. Nabors Industries, Inc. (“Nabors”) and its subsidiaries, one of which

is NCPS, have a valid arbitration program (known as the Nabors Dispute

Resolution Program or “DRP”) which requires that disputes involving injuries to

employees that are incurred during the course and scope of employment be

1
See Exhibit “A,” Order Denying Motion to Compel Arbitration.
submitted to final and binding arbitration. Appellees acknowledged and accepted

the terms of the DRP as a condition of their employment with NCPS.

3. The DRP applies to all direct and indirect subsidiaries of Nabors, all

current and former employees of the aforementioned subsidiaries, and any

“Electing Entity” that has agreed to be bound by the terms of the agreement. Penn

Virginia is an “Electing Entity” and agreed on more than one occasion to be bound

by the terms of the DRP, first in a 2008 drilling contract and later in a 2010 drilling

contract. In Penn Virginia’s Motion to Compel Arbitration and Abate, Penn

Virginia argued that Appellee’s individual claims fall within the scope of the DRP,

as both were employees of NCPS at the time of the incident and both allege that

their injuries occurred while in the course and scope of their employment.2

Because Penn Virginia is an Electing Entity to the Nabors DRP, Appellees’ claims

against Penn Virginia fall within the scope of the arbitration provisions set forth in

the DRP.

4. On June 18, 2015, Penn Virginia filed its Motion to Compel

Arbitration and Abate. The matter was set for hearing on July 31, 2015 but was

reset for September 11, 2015 after counsel for Appellee’s made requests for

various depositions and additional discovery relating to the arbitration agreement.

2
See “Exhibit B,” Motion to Compel Arbitration.
Following the hearing and on September 11, 2015, the trial court issued an Order

denying Penn Virginia’s Motion to Compel Arbitration.

5. On October 1, 2015, Penn Virginia filed a Motion for Reconsideration

of the Court’s Order, and with it attached an Affidavit from Mr. Ernest Nelson,

Vice President of Contracts for Nabors, to address a latent ambiguity raised by the

Court during the hearing. The trial court heard the Motion for Reconsideration on

October 12, 2015, and denied the Reconsideration on that same day.

II. ARGUMENTS & AUTHORITIES

6. Penn Virginia now moves this Court of Appeals for an extension of

time to file its Notice of Appeal in light of the Motion for Reconsideration that was

presented to the Court and denied on October 12, 2015.3

7. Texas Rule of Appellate Procedure 26.3 states that “the appellate

court may extend the time to file the notice of appeal if, within 15 days after the

deadline for filing the notice of appeal, the party: “(a) files in the trial court the

notice of appeal; and (b) files in the appellate court a motion complying with Rule

10.5(b).”4 Rule 10.5(b)(2) provides the pleading requirements for a motion to

extend time to file a Notice of Appeal. Under Rule 10.5(b)(2), appellant must

3
See “Exhibit C,” Motion for Reconsideration and “Exhibit D,” Order Denying Motion for
Reconsideration.
4
See Exhibit “E,” a File Stamped Copy of Penn Virginia’s Notice of Appeal, which was filed
with the trial court on October 13, 2015.
provide the deadline for filing “the item in question;” (in this case, the Notice of

Appeal); “the facts relied on to reasonably explain the need for an extension;”

identification of the trial court, “the date of the trial court’s judgment or appealable

order, and the case number and style of the case in trial court.”

8. In this instance, Penn Virginia’s deadline to file the Notice of Appeal

would have been twenty days from September 11, 2015, pursuant to Texas Rule of

Appellate Procedure 28.1. Twenty days from September 11, 2015 was October 1,

2015. If this Motion is granted, the extended deadline will fall on October 16,

2015. There have been no other requests for extension of time to file this Notice of

Appeal. The trial court’s judgment or appealable order was entered on September

11, 2015, and the case number and style of the case in the trial court is as follows:

Cause No. 2014-42519, Alfredo De La Garza, Individually and as Next Friend for

xxxxxx xx xx xxxxx and xxxxxxxx xx xx xxxxx, minors v. Penn Virginia Oil & Gas,

L.P., Penn Virginia Oil & Gas GP, L.L.C., Mike Ferguson, Trifecta Oilfield

Services, L.L.C., Cudd Pressure Control, Inc., Roywell Services, Inc., and Oaks

Personnel Services, Inc. d/b/a The Oaks Group.5

9. The facts relied on to explain the need for an extension include the

following:

5
It is relevant to note that Appellees non-suited all defendants but for Penn Virginia and the
Penn Virginia Company Man, Mike Ferguson.
- At the September 11, 2015 hearing, the Court noted that it would deny

the Motion to Compel Arbitration and to Abate because the contracts

entered into between Penn Virginia and Nabors in which Penn Virginia

became an Electing Entity to the Nabors DRP contemplated application

to “past and present” employees. The trial court reasoned that because

neither of the Appellees were past or present employees of NCPS at the

time the contracts were entered into, Penn Virginia’s status as an Electing

Entity did not apply to the dispute between Appellees and Penn Virginia,

and therefore the DRP did not apply.

- On October 1, 2015, Penn Virginia filed a Motion for Reconsideration in

which it presented the Affidavit of Ernest Nelson who, as set forth above,

is the Vice President of Contracts for Nabors. Mr. Nelson entered into

one of the contracts with Penn Virginia on behalf of Nabors and has

personal knowledge as to the intent of Nabors when it prepared the

agreements.

- In the Motion for Reconsideration, Penn Virginia argues that the

language providing that “Penn Virginia is an Electing Entity as to all

disputes with ‘present and former employees and applicants of Nabors,’”

must be read to mean that Penn Virginia is an Electing Entity “as to all
disputes involving present and former employees at the time the dispute

arises,” and not at the time the contract was entered into. In other words,

“Penn Virginia’s status as an Electing Entity is not limited to present and

former employees as of 2008 or 2010” (the time the underlying contracts

were entered into) but instead “applies as to all persons who are present

Nabors employees or former Nabors employees at the time of the

dispute.”

- In this case, the dispute arose between Penn Virginia and Appellees on

April 29, 2014, at which time both injured parties were NCPS employees.

Because Penn Virginia became an Electing Entity to the Nabors Dispute

Resolution Program in 2008 and again in 2010, the DRP applies as to the

dispute between Penn Virginia and Appellees.

- Counsel for Penn Virginia mistakenly believed that the deadline to file its

Notice of Appeal from the Order denying the Motion to Compel

Arbitration was thirty days from September 11, 2015. Counsel

determined after the actual deadline had passed that the appealable Order

was an accelerated appeal and that Penn Virginia in fact had twenty days

from the date of the September 11, 2015 Order. Penn Virginia now files
its Notice of Appeal and this Motion to Extend the Deadline to file its

Notice of Appeal by fifteen days from October 1, 2015.

10. The failure to file a Notice of Appeal on October 1, 2015 was not

deliberate or done in attempt to circumvent the Texas Rules. Counsel for Penn

Virginia had a good faith belief that the deadline to file its Notice of Appeal of the

Order denying the Motion to Compel Arbitration fell thirty days from the date of

the September 11, 2015 Order, pursuant to Rule 26.1. Thus, counsel believed that

the deadline to file was October 12, 2015 (as October 11, 2015 fell on a Sunday).

In light of counsel’s erroneous understanding of the deadline, it was Penn

Virginia’s belief that it could file the Motion for Reconsideration, proceed to oral

argument on the morning of October 12, 2015, and immediately and timely file the

Notice of Appeal from the original September 11, 2015 judgment if the Court then

denied the Motion for Reconsideration.

11. In actuality, an appeal from an Order denying a Motion to Compel

Arbitration is, pursuant to Rule 28.1(a), an accelerated appeal, which permits only

twenty days to file the Notice of Appeal. Following counsel’s research as to

available remedies, Penn Virginia has made all available and good faith efforts to

seek an extension under Rule 10.5(b)(2) to file its Notice of Appeal.
12. Before counsel became aware of the actual and correct deadline,

counsel believed it was in Penn Virginia’s best interest to allow the trial court to

consider the Affidavit of Ernest Nelson and evaluate the Motion for

Reconsideration before the Notice of Appeal was filed. Counsel further believed

(in error) that the “thirty day deadline” would permit the trial court to review the

Motion for Reconsideration and evaluate the Affidavit presented prior to divesting

the trial court of its jurisdiction. Given the trial court’s expression of concern at the

September 11, 2015 hearing as to the “ambiguity” set forth above, Penn Virginia

believed that the Motion for Reconsideration might resolve the issues the trial

court took with the Motion to Compel Arbitration and that, if not, the Notice of

Appeal could be timely filed immediately following the October 12 hearing.

13. Penn Virginia should be permitted to pursue its appeal and would

request that this Court of Appeals exercise its discretionary authority to allow Penn

Virginia to file its Notice of Appeal within fifteen days after the October 1, 2015

deadline. As this Court is no doubt aware, there is a strong presumption in Texas

favoring arbitration. See Circuit City Stores, Inc. v. Adams, 121 S. Ct. 1302 (2001);

Cantella & Co. v. Goodwin, 924 S.W.2d 943 (Tex. 1996); Jack B. Anglin v. Tipps,

842 S.W.2d 266, 268 (Tex. 1992). If a valid arbitration agreement exists, and the

claims are within the agreement’s scope, a trial court has no discretion and must
compel arbitration. Cantella, 924 S.W.2d at 944; Shearson Lehman Bros., Inc. v.

Kilgore, 871 S.W.2d 925, 928 (Tex. App.—Corpus Christi, 1994, orig.

proceeding).

14. Penn Virginia did not deliberately, strategically, or intentionally delay

in filing its Notice of Appeal in an effort to subvert the Texas Rules of Appellate

Procedure or engage in any gamesmanship with the trial court. Instead, counsel for

Penn Virginia mistakenly believed the deadline to file its Notice of Appeal fell on

October 12, 2015 rather than October 1, 2015. Penn Virginia believed that, with

the thirty-day deadline, it would have the opportunity to address the trial court’s

specific concerns as to a particular and nuanced ambiguity in the contracts between

Penn Virginia and Nabors. Penn Virginia should not be penalized for the errors

made by its counsel and would request the opportunity to litigate the issues set

forth in its Motion to Compel Arbitration, particularly the application of the

arbitration provisions set forth in the Nabors DRP.

PRAYER

Accordingly, Appellants, Penn Virginia Oil & Gas GP, LLC and Penn

Virginia Oil & Gas, L.P. pray that this Court grant this Motion to Extend the

Deadline to File a Notice of Appeal and permit Penn Virginia to present to this Court

its arguments and authorities in support of arbitration. Penn Virginia further prays for
such other and further relief, both special and general, at law and in equity, to which it

may be justly entitled.

Respectfully submitted,

/s/ Thomas J. Smith
Thomas J. Smith
State Bar No. 00788934
tsmith@gallowayjohnson.com
Kelly C. Hartmann
State Bar No. 24055631
khartmann@gallowayjohnson.com
Alexis B. Hester
State Bar No. 24072807
ahester@gallowayjohnson.com
GALLOWAY, JOHNSON, TOMPKINS
BURR & SMITH
1301 McKinney, Suite 1400
Houston, Texas 77010
(713) 599-0700
(713) 599-0777 – facsimile

ATTORNEYS FOR APPELLANTS, PENN
VIRGINIA OIL & GAS GP, LLC AND
PENN VIRGINIA OIL & GAS, L.P.

CERTIFICATE OF CONFERENCE

As required by Tex. R. App. P. 10.1(a)(5), I certify that I have conferred
with counsel for Appellees, both of whom indicated that they are opposed to this
Motion.

/s/ Kelly C. Hartmann__________
Kelly C. Hartmann
CERTIFICATE OF SERVICE

I hereby certify that, in accordance with Rule 9.5 of the Texas Rules of
Appellate Procedure, I have served the foregoing document upon the following
attorneys by electronic service, personal mail, by commercial delivery service or
by fax on October 14, 2015:

John David Hart J. Javier Gutierrez
LAW OFFICES OF JOHN DAVID HART Ana Laura Gutierrez
Wells Fargo Tower THE GUTIERREZ LAW FIRM, INC.
201 Main Street, Suite 1720 700 East Third Street
Fort Worth, Texas 76102 Alice, Texas 78332
Phone 817-870-2102 Phone 361-664-7377
Fax 817-332-5858 Fax 361-664-7245
Counsel for Appellee, Alfredo Counsel for Appellee, John Paul
De La Garza and his minor children Adame and his minor children,
and Intervenor, Ernesto Gonzalez, Jr.

/s/ Kelly C. Hartmann
Kelly C. Hartmann
NO.

COURT OF APPEALS
HOUSTON' TEXAS

PENN VIRGINIA OIL & GAS GP, L.L.C. & PENN VIRGINIA OIL AND
GAS L.P., Appellants.
v.
ALF'REDO DE LA GARZA, INDIVIDUALLY AND AS NEXT OF' F'RIEND
MINORS
&
JOHN PAUL AD INDIVIDUALLY AND AS NEXT OF FRIEND OF
AND
MTNORS,
Appellees.

On Appeal from the 215rH Judicial District Court,
Harris County, Texas
Cause No. 2014-42519

Vnnrrrc¡,TroN oF Tnonn¿,s J. Snnrrn

STATE OF TEXAS $
$
COUNTY OF HARRIS $

BEFORE ME, the undersigned authority on this day personally appeared Thomas J.

Smith, who after being duly swom upon his oath stated as f'ollows:

1. "My name is Thomas J. Smith. I am over twenty-one (21) years of age. I arn of

sound mind and in all ways competent to make this affidavit and verification,
2. I am one of the attomeys of record for Defendants, Perur Virginia Oil & Gas, L.P.

and Penn Virginia Oil & Gas GP, LLC. I have personal knowledge of the facts stated in this

affidavit and those facts are true and correct.

3. I have reviewed the foregoing Motion for Extension of Time to Fil of

Appeal. In my personal knowledge, the Motion truly and correctly recites allegations

set forth in the pleading,"

Smifh

STIBSCRIBED AND SWORN TO before me a notary public, which witness my hand
ffiuV of October, 201 5
and seal of this office this

1n and for the State Texas
ROSYN S, MORGAN
NolÕry Puþlic, Slole ol lexos
Mv Cornmrssron Explres
JulY 30, 20.l I
r-l
CAUSE NO. 2014-42519
tfn'ç
Pfrlt tl
ALFREDO DE LA GARZA, $ IN TIIE DISTRICT COURT OX'
ASNEXT Ì'RIEND $
FOR and $
tnlnors $
$
v $ IIARRIS COUNTY,TEXAS
$
PEI\N VIRGINIA OIL & cAS, L.P., PEI\N $
yIRGTNIA OIL & cAS cP LLC,
$
MIKE X'DRGUSON, TRIX'ECTA OILFIELn $
SERVICES, LLC, CUDD PRESSURE $
CONTROL,INC., ROYWELL $ 215th JUDICIAL DISTRICT
SERVICES, INC., and OAKS PERSOII¡IEL $
SERVICES, INC. d/b/a TIIE OAKS GROUP $

ORDER DEI\¡-YING DEFENDA¡ITS, PENN VIRGINIA OIL & GAS, L.P. AND PENN
VIRGIMA OIL & GA.S GP LLC'S MOTION TO COIVIPEL ARBITRATION AND TO
ABATE

On ll# day of STt^! .2015, came to be considered Defendants, Penn

Virginia Oil & Gas, L,P. and Penn Virginia Oil & Gas GP.LLC's Motion to Compel A¡bitration

and to Abate. After considering the motion and hearing the arguments of counsel, this Court is of
the opinionthatthe Motion shouldbe DENIE?

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Filed: 6/1 8/201 5 4:58:00 PM

CAUSE NO. 2014-42519

ALFREDO DE LA GARZA, $ IN THE DISTRICT COURT OF
INDIVIDUALLY and AS NEXT FRIEND $
FOR A and $
, mlnors $
$
v $ HARRIS COUNTY, TEXAS
$
PENN VIRGINIA OIL & GAS, L.P., $
PENN VIRGINIA OIL & GAS GP, LLC, $
MIKE FERGUSON, TRIFECTA $
OILFIELD SERVICES, LLC, CITDD $
PRES SURE CONTROL, [NIC., $
ROYWELL SERVICES,INC. and OAKS $
PERSONNEL SERVICES, INC. d/b/A $
THE OAKS GROUP $ 281ST ruDICIAL DISTRICT

DEFENDANTS, PENN VIRGINIA OIL & GAS, L.P. AND PENN VIRGINIA OIL & GAS
GP. LLC'S MOTION TO COMPEI , ARRITRATION AND TO ARATE

Defendants, Penn Virginia Oil & Gas, L.P. and Penn Virginia Oil & Gas GP, LLC

(collectively referred to hereinafter as "Penn Virginia" unless individual reference is necessary)

file this Motion to Compel Arbitration and to Abate pending such arbitration. In support thereof,

Penn Virginia would show as follows:

I.INTRODUCTION

l. Plaintiff, Alfredo "Freddie" De La Garza ("Plaintiff' or "De La Garza"),

Individually and as Next Friend of and , and

Intervenor, John Paul "J.P." Adame ("Adame"), Individually and as Next Friend of

, (collectively "the parties") filed

personal injury claims against Penn Virginia on Jruly 24, 2014 and, November 6, 2014,

respectively. Their claims arise out of an April 29,2014 incident, which occurred at a well site

EXHIBIT "B''
located near Shiner, Texas while De La Garua and Adame were working in the course and scope

of their employment with Nabors Completion & Production Co. ("NCPS").

2. Nabors Industries, Inc. ("Nabors") and its subsidiaries, one of which is NCPS,

have a valid arbitration agreement which requires that disputes involving injuries to employees

that are incurred during the course and scope of employment be submitted to final and binding

arbitration. De La Garza and Adame both acknowledged and accepted the terms of the

arbitration agreement.

3. The arbitration agreement applies to all direct and indirect subsidiaries of Nabors,

all current and former employees of the aforementioned subsidiaries, and any "Electing Entity"

that has agreed to be bound by the terms of the agreement.r Penn Virginia is an "Electing Entity"

and has agreed on more than one occasion to be bound by the terms of the agreement.2 De La

Garza's and Adame's individual claims fall within the scope of the arbitration agreement as both

were employees of NCPS at the time of the incident and allege that their injuries occurred while

in the course and scope of their employment. De La Garza and Adame also filed claims as

representatives of their minor children. The minors' claims are also subject to the arbitration

agreement as they are derivative of De La Garza and Adame's claims. Consequently, De La

Garza and Adame's individual claims against Penn Virginia and the claims filed on behalf of

their minor children all fall within the scope of the arbitration agreement.

4. Therefore, Penn Virginia's Motion to Compel Arbitration should be granted, and

this case should be abated or dismissed and compelled to final and binding arbitration.

I See Nabors Dispute Resolution Program ("DRP'), a true and correct copy of which is attached as Exhibit l-4.
2
See 2008 Penn Virginia Oil & Gas, LP IADC Contract, a true and correct copy of which is attached as Exhibit 1-
B; see also Contractors Special Proyisions, a true and correct copy of which is attached as Exhibit 1-C, at I 16
"Operator, its parent, subsidiary and affiliated corporations, as well as the employees, officers and directors ofeach
(collectively, "Operator") is cognizant of the Nabors Dispute Resolution Program and wishes to become an Electing
Entity, as defined in that Program." See also 2010 Penn Virginia MC Energy, LLC IADC Contract, a true and
correct copy of which is attached as Exhibit l-D; see also Contractors Specíøl Provisions, a true and correct copy of
which is attached as Exhibit 1-E, at fl 16.
II.I.INDISPUTED FACTS

5. Nabors is the "Sponsor" of the Nabors Dispute Resolution Program (ooDRP"), as

that term is defined by the DRP.3

6. The DRP is subject to the Federal Arbitration Act ("FA"{").4

7. By its terms, the Nabors DRP is designed to provide a means for the resolution of

disputes between the "Company" and the Company's present and former employees that are

related to or that arise out of a current or former employment relationship with the Company.s

8. The DRP is intended to create an exclusive procedural mechanism for the final

resolution of all disputes falling within its terms.6 Consequently, the DRP requires that all

disputes between De La Garza, Adame and the Company are subject to binding arbitration.T

9. The DRP defines "Dispute" to include personal injuries that are incurred at the

worþlace or in the course and scope of employment.s

10. The DRP defines "Company" as "Sponsor and every direct and indirect

subsidiary...ofSponsor,@',,9Aspreviouslymentioned,Naborsisthe

3 Al/idavit of Keith Nicholson ("Nicholson Alf."), a true and coraect copy of which is attached as Exhibit 1, atl4;
see also Exhibit I -4, at fl 2(L).
a SeeExhibit 1-A at
fl fl 2(C) and 8. The Federal Arbitration Act, 9 U.S.C. $ 2, applies in state courts and preempts
state anti-arbitration laws to the contrary. Circuit City Stores, Inc. v. Adams, 121 S.Ct. 1302; Southland Corp v.
Keating, 465 U.S. 1, 16 (1984); see also Palm Harbor Homes v. McCoy, 944 S.W.2d 716, 721 (Tex. App.-Fort
Worth 1997) (holding that FAA preempted Texas Arbitratìon Act's requirement that party's attorney sign
agreement). Although the FAA preempts state arbitration laws, courts still must resort to general state law contract
principles to determine whether an arbitration agreement will be enforced.
5,Se¿ Exhibit l-4, at fl L
6 See Exhibit l-4, at fl l.
7.See Exhibit l-4.
8 "Dispute" means all legal and equitable claims, demand and controversies, of whatever nature or kind, whether in
contract, tort, under statute or regulation, or some other law, between persons bound by the Program or by an
agreement to resolve Disputes under the Program, or between a person bound by the Program and a person or entity
otherwise entitled to its benefits, including, but not limited to, any matters with respect to...6. any personal ínjury
allegedly incurred in or about a Company l{orkpløce or ìn the course and scope oføn Employee's employment.
See Exhibit 1-A at tf 2(E) (emphasis added).
e
See Exhibit l-A at !f 2(D) (emphasis added).
"Sponsor" of the DRP. NCPS, De La Garza and Adame's employer at the time of the worþlace

incident, is a subsidiary of Nabors.r0 The DRP extends to and includes employees of NCPS.Ir

11. Further, Penn Virginia is an "Electing Entity" and agreed to be bound by the

terms of the DRP in two IADC Conhacts between it and Nabors.l2 As an "Electing Entity," Penn

Virginia is required to resolve disputes with any past or present employee(s) or applicants of

Nabors in accordance with the DRP.I3

12. On January 2, 2013, Adame executed a document entitled "Application For

Hourly And Daily Employment," as well as another document entitled "Notice to Applicants

Regarding Dispute Resolution Program."l4 Likewise, on July 16,2013, De La Garza executed

the "Application For Hourly And Daily Employment" and the "Notice to Applicants Regarding

Dispute Resolution Program."l5 De La Gana and Adame, by their signatures, acknowledged and

agreed that they would be "required to adhere to the Dispute Resolution Program and its

requirement for submission of all claims to...arbitration."l6

13. On January 7,2013, Adame also executed a document entitled "Employee

Acknowledgement Concerning Nabors Dispute Resolution Program."lT The document

specifically states, "I have received a copy of the Nabors Dispute Resolution Program."l8 De La

Garza executed the same document on July 22, 20l3.re De La Garza and Adame, by their

to See Nicholson Aff. atl 6.
tt See Nicholson Aff. atl6; see also Affidavit oJ Katherine Ryan, a true and corect copy of which attached as
Exhibit 2.
t2 See Nicholson Aff, at\l7 through 9; see ølso Exhibits 1-B and l-D; see a/so Exhibits 1-C and 1-E, at t[ 16.
t3 See Nicholson Af,f. atl 10; see also Exhibits 1-B - I -G.
ta See Nicholson Aff. atl 12; see also Exhibit 1-F.
ts See Nicholson Aff. at\ 16; see also Exhibit 1-G.
t6 See Nicholson Aff. atll 12 and 16; see also Exhibit I -F and 1 -G.
t7 Nicholson Aff. at\ 13; see also Exhibit I -H.
ts Nicholson Aff. at
fl 13; see also Exhibit l-H.
te NicholsonAff. atllT;see also Exhibit 1-I.
signatures, again acknowledged and agreed that they would be "required to adhere to the Dispute

Resolution Program and its requirement for submission of all claims to...arbitration."2O

14. On April 29,2003, Adame was hired by Nabors Well Services, Ltd. as a crew

worker.2l On January 7 ,2013, as a result of a business reorganization, he became a crew worker

for NCPS when Nabors V/ell Services, Ltd. liquidated into Nabors V/ell Services, Co., which

liquidated and dissolved into NCPS.22 As a crew worker, Adame's job duties and responsibilities

included the operation of hand and power tools to perform maintenance and repairs to oil or gas

wells and related equipment. Adame's job duties also involved activities associated with rigging-

up and rigging-down workover rigs, pulling levers or turning handles to extend hydraulic or

screw-type jacks to support and level the rig, laying steel production rods, tubing, and casing,

and other tasks necessary to support operations.23 Adame's job duties and responsibilities did not

include the movement of goods in interstate commerce.2a While employed by NCPS, Adame was

never employed as a commercial truck driver or transportation worker.25

15. On July 22,2013, De La Garza was hired by NCPS as a crew worker.26 As a crew

worker, De La Garza'sjob duties and responsibilities included the operation of hand and power

tools to perform maintenance and repairs to oil or gas wells and related equipment. De La

Garza's job duties also involved activities associated with rigging-up and rigging-down
workover rigs, pulling levers or turning handles to extend hydraulic or screw-type jacks to

support and level the rig, laying steel production rods, tubing, and casing, and other tasks

necessary to support operations.2T DeLaGarza'sjob duties and responsibilities did not include

20
Nicholson Alf. atll 13 and,17; see also Exhibit l-E.
2t Nicholson Aff. at \ 14.
22
NicholsonAff. atfl 14.
23
Nicholson Aff. at fl 14.
24
Id.
2s Id.
26
Nicholson Aff, at tf 18.
27
Nicholson Aff atl 18.
the movement of goods in interstate commerce.2s While employed by NCPS, De La Garza was

never employed as a commercial truck driver or transportation worker.2e

L6. On July 24, 2014, De La Garza filed his Original Petition, and on September 8,

2014 and October l, 2014, De La Garza filed his First and Second Amended Petitions.30

Likewise, on November 6, 2014 and February 19, 2015, Adame filed his Original and First

Amended Petitions in Intervention.3l A copy of all pleadings are maintained in the Court's

records. De La Garza and Adame allege that on April 29, 2014 and while working for NCPS,

they were injured when a piece of NCPS line pipe parted, causing both to be thrown back as a

result ofthe released pressurized gas.32

III. SUMMARY OF'THE ARGUMENT
17. The Company (defined to include Nabors, its subsidiaries, and any "Electing

Entity") has a valid arbitration agreement, which both De La Garza and Adame acknowledged

and accepted. Because Penn Virginia is an "Electing Entity," the parties' claims against Penn

Virginia fall within the scope of the arbitration agreement. Consequently, the parties' claims

must be submitted to final and binding arbitration in accordance with the DRP. Therefore, Penn

Virginia's Motion to Compel Arbitration should be granted and this case should be abated.

IV. ARGUMENT & AUTHORITIES

18. Pursuant to the DRP, the parties' lawsuit must be submitted to binding arbitration.

It is undisputed that Texas courts recognize that arbitration agreements in an "at-will"

employment setting apply to personal injury claims. In fact, there is a strong presumption in

Texas favoring arbitration. See Circuit City Stores, Inc. v. Adams, 121 S. Ct. 1302 (2001);

28
Id.
2e
Id.
30 Plaintiffls Original Petition, First Amended Petition, and Second Amended Petition.
3rAdame's Original Petition in Intervention and First Amended Petition in Intervention.
32SeePlaintifls Original Petition and First Amended Petition, as well as Adame's Original Petition in Intervention
and First Amended Petition in Intervention.
Cantella & Co. v. Goodwin, 924 S.W.2d,943 (Tex. 1996); Jack B. Anglin v. Tipps,842 S.W.2d

266, 268 (Tex. 1992). If a valid arbitration agreement exists, and the claims are within the

agreement's scope, atrial cout has no discretion and must compel arbitration. Cantella,924

S.V/.2d at 944; Shearson Lehman Bros., Inc. v. Kilgore, 871 S.V/.2d 925,928 (Tex. App.-
Corpus Christi, 1994, orig. proceeding).

19. The clear language of the DRP states that the Federal Arbitration Act,9 U.S.C. $

1, et. seq. ("FAJA.") controls.33 The Texas Supreme Court has held that in cases where the FAA

is stated in the agreement as the controlling law, the FAA prevails. EZ Pawn Corp. v. Mancias,

934 S.W.2d 87,91 (Tex. 1996). In adjudicating a motion to compel arbitration under the FAA,

courts generally try to determine whether the parties agreed to arbitrate the dispute in question.

Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626 (1985); Folse v.

Richard Wolf Medical Instruments Corp., 56 F.3d 603, 605 (5th Cir. 1995); R.M. Perez &

Assocs., Inc. v. Welch, 960F.2d 534, 538 (5th Cir. 1992).

20. Under the FAA, the court applies ordinary state contract law principles in order to

decide whether a valid arbitration agreement exists. See In re D. Wilson Constr. Co., 196 S.V/.3d

774,781 (Tex. 2006) (citing First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944

(1995)); 9 U.S.C.A. $ 1 et seq.; Crv. Pnec. & R¡v. Coon $ 171.001 et seq. Once a valid

arbitration agreement is established, a presumption attaches favoring arbitration. Dallas

Cardiologt Assoc., P.A. v. Mallick,978 S.V/.2d 209,212 (Tex. App.-Dallas, 1998, pet. denied).

Then Court must then determine whether the arbitration agreement covers the non-movant's

claims. In re Jim Walter Homes, lnc.,207 S.W.3d 888 (Tex. App.-Houston [14th Dist.] 2006).

In doing so, a court must focus on the complaint's factual allegations rather than the legal causes

of action asserted. Id.

33 S¿¿ Exhibit l-A at !f fl 2(C) and 8
21. Thus, two questions guide the determination of whether Penn Virginia's Motion

to Compel should be granted: 1) is there a valid agreement to arbitrate; and2) does the dispute in

question fall within the scope of the agreement? Associated Glass, Ltd. v. Eye Ten Oaks Invs.,

Ltd., 147 S.W.3d 507,511 (Tex. App.-San Antonio 2004,no pet.).

A. Valid Agreement to Arbitrate

22. An "at-will" employee who receives notice of an employer's arbitration policy

and continues or commences employment accepts the terms of the agreement as a matter of law.

See In re Halliburton, S0 S.W.3d 566 (Tex. 2002); In re Dallas Peterbilt, Ltd., L.L.P., 1.96

S.\M.3d 761, 162 (Tex. 2006). In Halliburton, the employer created a dispute resolution program

which obligated both employees and the employer to arbitrate all disputes between them. See

Halliburton, 80 S.W.3d at 566. The Texas Supreme Court held that the employer was justified

in giving notice to all employees of the program and informing them that by continuing to work

after the adoption of the program, employees would be considered to have accepted the program.

See id at 569-71.

23. Four years later, the San Antonio Court of Appeals extended Halliburton even

further. Relying on Halliburton, the Fourth Court of Appeals compelled arbitration where the

employee expressly refused to sign an arbitration agreement but continued to work after

receivingnoticeofthearbit¡ationrequirement. InrefuRGT,Inc.,2006WL622736 (Tex.App.-

San Antonio 2006, orig. proceeding).

24. It should also be noted that the San Antonio Court of Appeals has specifically
considered the Nabors DRP and held that it is valid and enforceable on multiple occasions. See

NDUSA USA, LP v. Pena, 385 S.V/.3d 103 (Tex. App.-San Antonio 2012, pet. denied);

NDUSA USA, LP v. Carpenter, 198 S.V/.3d 240,249 (Tex. App.-San Antonio 2006, orig.
proceeding). Furthermore, in October 2013 and, then again in December 2013, the Texas

Supreme Court denied the family of a deceased Nabors' employee's petition for review when the

family sought to reverse the Fourth Court of Appeals' determination that the DRP was valid and

enforceable. See Pena,385 S.ïi/.3d 103

25. De La Garza and Adame executed documents on several occasions that clearly

express both parties' agreement to the terms of the DRP.3a The documents specifically state that

De La Garza and Adame acknowledged receiving, reviewing, understanding, and accepting the

DRP's requirement to submit disputes to arbitration.3s De LaGarza and Adame's signatures on

the aforementioned documents is strong evidence of their actual acknowledgment and agreement

that they are required to adhere to the DRP. See In re Bunzl USA,l55 S.W.3d 202 (Tex. App.-
El Paso 2004, orig. proceeding).

26. De La Garza and Adame accepted the terms of the DRP as a matter of law.

Therefore, a valid and enforceable agreement to arbitrate was formed. In re Pqlm Harbor
Homes, Inc.,l95 S.V/.3d 672,676 (Tex. 2006).

B. The Dispute Falls Within the Scope of the Aereement

21. The parties' claims fall within the scope of the DRP. The DRP requires that

disputes between the Company (defined as Nabors, its subsidiaries, and any "Electing Entity")

and its current or former employees be submitted to arbitration. According to the parties'

Petitions, De La Gana and Adame were both employees of a Nabors' subsidiary (NCPS) and

both were allegedly injured while in the course and scope of their employment. Consequently,

this dispute, which is between NCPS employees and Penn Virginia (an "Electing Entity"), falls

within the scope of the agreement.

3a SeeNicholsonAff. atfl\12, 13,16,andl7;see also Exhibits 1-F- 1-I.
35
Nichols on Aff. at I I 12, 13, I 6, and 17 ; see also Exhibits -F - 1-I.
1
28. Whether a claim falls within the scope of an arbitration agreement depends on the

factual allegations of the complaint rather than the legal causes of action asserted. Prudential

Secs., Inc. v. Marshall,909 S.V/.2d 896, 899 (Tex. 1995); Ikon Of/ìce Solutions, Inc. v. Eifert,2

S.W.3d 688, 697 (Tex. App.-Houston [14th Dist.] 1999, orig. proceeding); Prudentiøl-Bache

Secs., Inc. v. Garza, 848 S.V/.2d 803, 807 (Tex. App.-Corpus Christi 1993). Based on the

factual allegations contained in the parlies' pleadings, the parties' claims fall squarely within the

scope of the DRP.

29. It is undisputed that De La Garza and Adame were employed by NCPS, which is

a Nabors subsidiary.36 It is undisputed that La Garza and Adame both alleged that they were

injured at the worþlace and/or in the course and scope of their employment.3T

30. De La Garza and Adame signed an acknowledgement that specifically states, "I
have received a copy of the Nabors Dispute Resolution Program...and understand that I am

required to adhere to the Dispute Resolution Program and its requirement for submission of

disputes to...arbitration."38 All of these terms are clearly defined in the DRP.

31. The DRP clearly and unequivocally states that it "applies to and binds the

Company, each Employee and Applicant."3e The DRP defines "Dispute" to include any personal

injury that is incurred at the worþlace or in the course and scope of employment.aO According

to the DRP, "Company" means "Sponsor and every direct and indirect subsidiary...of Sponsor,

(and) any Electing Entity."al

36 Nicholson Aff. atl T 6, 11 through 151, see also Plaintiffs Original Petition and First Amended Petition, and
Adame's Original Petition in Intervention and First Amended Petition in Intervention.
37 ,See Plaintiffs Original Petition and First Amended Petition and Adame's Original Petition in Intervention and

First Amended Petition in Intervention.
38
Nicholson Aff atll l3 and l6; see also Exhibits l-H and l-I (emphasis added).
3e,S¿e Exhibit l-4, at !f l.
ao Exhibit 1-A at tf 2(E).
See
ar ,See Exhibit l-A at 2(D).
!f
32. Nabors is the "sponsor" of the DRP.a2 NCPS is a subsidiary of Nabors.a3 Penn

Virginia is an "Electing Entity" and agreed that it is bound by the terms of the DRP.44 Therefore,

Penn Virginia falls within the scope of the "Company."

33. The parties' claims clearly fall within the scope of the arbitration agreement.

Consequently, Penn Virginia's Motion to Compel Arbitration should be granted and this case

should be abated or dismissed and compelled to final and binding arbitration.

V. CONCLUSION

34. Nabors has instituted a comprehensive dispute resolution program, which requires

arbitration of disputes between the Company (which is defined as Nabors Industries, Inc., its

subsidiaries, and any "Electing Entity") and current or former employees. De La Garza and

Adame unequivocally agreed to adhere to the DRP and its requirement to submit all claims to

arbitration. The DRP applies to personal injuries that occur at the workplace or while the

employee is in the course and scope of his employment. Therefore, the parties' claims, as

asserted in this lawsuit, are subject to the terms of the DRP. Consequently, Penn Virginia's

Motion to Compel Arbitration should be granted and this case should be abated or dismissed and

compelled to final and binding arbitration.

PRAYER

For the foregoing reasons, PENN VIRGINIA OIL & GAS, L.P. and PENN VIRGINIA

OIL & GAS GP, LLC request that the Court grant this Motion, abate or dismiss this action, and

order that the claims asserted by Alfredo De La Garza,Individually and as Next Friend of

a, and Intervenor, John Paul Adame, Individually and as

Next Friend of be

a2
Nicholson Aff, at\ 4; see also Exhibit l-4, at !J 2(L).
43Nicholson Aff. atl 6.
4 See Nicholson Aff. atll7 through l0; see also Exhibits l-C and l-F,, at Contractors Special Provisions,fllí.
compelled to final and binding arbitration. PENN VIRGINIA OIL & GAS, L.P. and PENN

VIRGINIA OIL & GAS GP, LLC further request all other relief to which they are entitled.

Respectfully submitted,

/s/ Thomas J. Smith
Thomas J. Smith
State Bar No. 00788934
tsmith@gallowayj ohnson. com
Kelly C. Hartmann
State Bar No. 24055631
khartmarn@gall owayj ohn son. com
Alexis B. Hester
State Bar No.24072807
ahester @gallowayj ohnson. com
Ge[owey, JoFTNSoN, Tolr¿prrNs
Bunn & SurrH
l30l McKinney, Suite 1400
Houston, Texas 77010
(713) s99-0700
(7 1 3) 599-07 77 - facsimile

Attorneys for Defendants, Penn VirgÍnÍa
OÍ1& Gaso L.P. and Penn VÍrgÍnÍa OÍI8t
Gas GP, LLC
CERTIFICATE OF SERVICE

I hereby certi$ that a true and correct copy of the foregoing document has been served
electronically, by and through the Court approved electronic filing manager, to participating
parties on this 18th day of June 2015, as follows:

John David Hart J. Javier Gutierrez
L.rw Ornrcns OF JonN D¿,vrn H¿,nr Ana Laura Gutierrez
Wells Fargo Tower Tnn GurrrRREz LAw Frnu,Inc.
201 Main Street, Suite 1720 700 East Third Street
Fort Worth, Texas 76102 Alice, Texas 78332
Phone 817-870-2102 Phone 361-664-7377
Fax 817-332-5858 Fax 361-664-7245
Coanselfor Plaintiff, Individaally and as Counselfor Intervenor,
Nert Fríend of I John Pøul Adøme, Indivíduølly and øs Next
, Minor Children Fríend of

Benjamin A. Escobar, Jr.
Brit T. Brown
BEIRNE, M.lvNnRn & PlnsoNo L.L.P.
1300 Post Oak Blvd., Suite 2500
Houston, Texas 77056
Phone 713-623-0887
Fax 713-960-1527
Counsel for Defendønt, Cudd Pressure
Control, Inc.

/s/ Thomas J. Smith
Thomas J. Smith
CAUSE NO. 2014-42519

ALFREDO DE LA GARZA, $ IN THE DISTRICT COURT OF
INDIVIDUALLY aTTcl AS NE,XT FRIEND $
FOR $
mlnoïs ç
$
$ HARRIS COI'NTY, TEXAS
$
PENN VIRGINIA OlL & GAS, LP, $
PENN VIRGINIA OIL & GAS GP, LLC, $
MII(E FERGUSON, TRIFECTA $
OILFIELD SERVICES, LLC, CUDD $
PRESSURE CONTROL, INC., $
ROYWELL SERVICES,INC. and OAI(S 6

PERSONNEL SERVICES, lNC, cllb/a $
ST
THE OAKS GROUP $ 28 1 JUDICIAL DISTRICT

VERIFICATION

S'|ATE OF TEXAS {j

$
COUNTY OF HARRIS $

BEFORE ME, the undersigned authority on this day personally appeared Thornas J.

Smith, who after being cluly sworn upon his oath stated as follows:

1. "My narne is Thomas J. Srnith. I am over twenty-one (21) years of age. i am of sound

rnind and in all ways competent to make this verification.

2. I am one of the attorneys of record for Dcfcndants, Penn Virginia Oil & Gas, L,P, and

Penn Virginia Oil & Gas GP, LLC. I have personal knowledge of the facts stated in this affidavit

and those facts are true and correct.

3. I have revicwcd the foregoing Motion to Compel Arbitration and to Abate this case

pcnding such arbitration. In my personal knowledge, the Motion truly and correctly recites the

fäctual allegations set fortir in the pleadings ancl the evidence in the trial court record."
J

SUBSCRIBED AND SWOI{N TO before me a notary public, which witness my hand
and seal of this office this/ l*day of June, 2015.

Notary Public in and for ofTexas
nHoND^ SCHNltZ
Notory Publlc, Stole ol Toxqs
MyCommlsslon Fxplr€!
Docembor lt,2013
CAUSE NO. 2014-42519

ALFREDO DE LA GARZA, $ IN THE DISTRICT COURT OF
Y andAs NEXTFRIEND $
and $
$
$
$ HARRIS COLINTY, TEXAS
$
PENN VIRGINIA OTL &. GAS, LP, $
PENN VIRGINIA OIL & GAS GP, LLC, $
MIKE FERGUSON, TRIFECTA $
OILFIELD SERVICES, LLC, CUDD $
PRESSURE CONTROL, INC., $
ROYV/ELL SERVICES, INC. and OAKS $
PERSONNEL SERVTCES, INC. d/b/A $
ST
THE OAKS GROUP $ 28 1 JUDICIAL DISTRICT

AFFIDAVIT OF KNITH NICHOLSON

STATE OF'TEXAS $
$
COUNTY OF HARRIS $

Before me, the unclersigned notary, on this day personally appeared Keith Nicholson, the
afftan6 a person whose identity is known to me. After I administered an oath to affiant, the
affiant testified:

I "My name is Keith Nicholson. I am over l8 years of age, of sound mind, and capable of
making this affidavit. The facts stated in this affidavit are within my personal knowledge
and are true and correct.

2. I am Assistant General Counsel for Nabors Corporate Services, Inc.

J In my capacity as Assistant General Counsel, I am required to be familiar with Nabors
Industries, Inc.'s corporate structure and the relationship of its various subsidiaries and
affiliated companies. I am also required to be familiar with the Nabors Dispute
Resolution Program ("DIUt"¡.

4 Nabors Industries, Inc. is the "Sponsor" of the Nabors DRP as that tem is defined by the
DRP. A true and correct copy of the DRP is attached to my affìdavit as Exhibit 1-4.

5 The DRP provides that it applies to all direct and indirect subsidiaries of Nabors
Inclustries, Inc., as well as all "Electing Entities" that have agreed to be bound by same.

6. Nabors Completion & Production Services Co. ("NCPS") was a subsidiary of Nabors

EXHIBIT "1"
Industries, Inc. at the time of the April 29,2014 incident which makes the basis of the
lawsuit.

7 On Septembet 23,2008, Penn Virginia Oil & Gas, LP agreed to be bound by the DRP as
an "Electing Entity" in the "Contractors Special Provisions" contained in the International
Association of Drilling Contractors ("IADC") Drilling Contract between it and Nabors
Drilling USA LP. A true and correct copy of the IADC Contract is attached in its entirety
to my affidavit as Exhibit l-8. The Contractors Special Provisions portion has been
pulled out for reference and is attached as Exhibit 1-C.

8. The Contractors Special Provisions page states at paragraph 16 that "Operator, its parent,
subsidiary, and affiliated corporations,..(collectively "Operator") is cognizant of the
Nabors Dispute Resolution Program and wishes to become an Electing Entity, as defined
in that Program. Accordingly, Operator and Nabors Industries, Inc. ("Nabors") hereby
agree that Operator is an Electing Entity..."

9 In addition, on September 8, 2010, Penn Virginia MC Energy, LLC agreed to be bound
by the DRP as an "Electing Entity" in the "Contractors Special Provisions" contained in
the International Association of Drilling Contractors ("IADC") Drilling Contract between
it and Nabors Drilling USA LP. A true and conect copy of the IADC Contract is attached
in its entirety to my affidavit as Exhibit 1-D. The Contractors Special Provisions portion
has been pulled out for reference and is attached as Exhibit 1-8. lt is my understanding
that Penn Virginia MC Energy, LLC is a subsidiary or affiliated corporation of Penn
Virginia Oil & Gas, LP andlor Penn Virginia Oil & Gas GP, LLC.

10. As an "Electing Entity," Defendants, Penn Virginia Oil & Gas, LP and Penn Virginia Oil
& Gas GP, LLC are required to resolve disputes with any past or present employee(s) or
applicant(s) of Nabors Industries, Inc. or its subsidiaries in accordance with the DRP.

I l. Based upon my review of the personnel file of Mr. Adame, I can confirm that Mr. Adame
was employed by NCPS, and that he executed various documents that acknowledged that
he received, reviewed, and accepted the terms and conditions of the DRP.

t2, Specifically, my review of the relevant documents confirms that on January 2,2013,Mr.
Adame executed a document entitled "Application For Hourly And Daily Employment,"
a true and correct copy of which is attached as Exhibit 1-F. Mr. Adame acknowledged
and agreed by his signature that he is "required to adhere to the Dispute Resolution
Program and its requirement for submission of all claims to..,arbitration."

l3 Further, on January 7,2013, Mr. Adame executed a document entitled "Employee
Acknowledgement Concerning Nabors Dispute Resolution Program," a true and correct
copy of which is attached as Exhibit l-H. The document specifically states, "I have
received a copy of the Nabors Dispute Resolution Ptogram." Mr, Adame acknowledged
and agreed by his signature that he is "required to adhere to the Dispute Resolution
Program and its requirement for submission of all claims to...arbitration."
t4 Mr. Adame was employed by NCPS as a crew worker. As a crew worker, Mr. Adame's
job duties and responsibilities included the operation of hand and power tools to perform
maintenance and repairs to oil or gas wells and related equipment. Mr. Adame's job
duties also involved activities associated with rigging-up and rigging-down work over
rigs, pulling levers or turning handles to extend hydraulic or screw-type jacks to support
and level the rig, laying steel production rods, tubing, and casing, and other tasks
necessary to support operations. 'While employed by NCPS, Mr. Adame was never a
commercial truck driver or transportation worker.

15. Based upon my review of the personnel file of Mr. Alfredo De La Garza,I can confirm
that Mr'. De La Gana was employed by NCPS, ancl that he executed various documents
that acknowledged that he received, reviewed, and accepted the terms and conditions of
the DRP.

16. Specifically, my review of the relevant documents confirms that on July 16, 2013, Mr. De
La Gana executed a document entitled "Application For Hourly And Daily
Employment," a true and coüect copy of which is attached as Exhibit l-G. By his
signature, Mr. De LaGarza acknowledged and agreed that he is "required to adhere to the
Dispute Resolution Program and its requirement for submission of all claims
to. .. arbitration."

17. Further, on July 22,2013, Mr, De La Garza executed a document entitled "Employee
Acknowledgement Concerning Nabors Dispute Resolution Program," a true and correct
copy of which is attached as Exhibit 1-I. The document specifically states, "I have
received a copy of the Nabors Dispute Resolution Program." Mr. De La Garza
acknowledged and agreed by his signature that he is "required to adhere to the Dispute
Resolution Program and its requirement for submission of all claims to...arbitration."

18 Mr. De LaGarua was employed by NCPS as a crew worker. As a crew worker, Mr. De
La Garza's job duties and responsibilities included the operation of hand and power tools
to perform maintenance and repairs to oil or gas wells and related equipment. Mr. De La
Garza's job duties also involved activities associated with rigging-up and rigging-down
work over rigs, pulling levers or turning handles to extend hydraulic or screw-type jacks
to support and level the rig, laying steel production rods, tubing, and casing, and other
tasks necessary to support operations. Mr. De La Garza'sjob duties and responsibilities
did not include the movement of goods in interstate commerce. While employed by
NCPS, Mr. De LaGarza was never a commercial truck driver or transportation worker.

t9. At all times relevant to this matter, NCPS was engaged in interstate commerce as it was
in the business of providing services for the development of oil and gas resourÇes that are
placed into commerce in both Texas and other states of the United States.

20. On information and belie{ Penn Virginia is also engaged in interstate commerce as it is
in the business of producing oil and gas resources that are placed into commerce in both
Texas and other states of the United States.
21 Attached as Exhibit 1-A to my affidavit is a true and correct copy of Nabors Industries,
Inc.'s DRP booklet, in English and Spanish, respectively. These records are kept by
Nabors Industries, Inc. in the regular course and scope of business, and it was the regular
course of business of Nabors Industries,Ino, for an employee or representative of Nabors
Industries, Inc., with knowledge of the act or event that was recorded, to make these
records or to transmit the information to be included in these records. These records were
made at or near the time or reasonably soon after the act or event that was recorded.

22 Attached as Exhibit i -B to my affrdavit is a true and correct copy of the 2008 IADC
Drilling Contract between Nabors and Penn Virginia Oil & Gas, LP, and attached as
Exhibit l-C is a true and correct copy of the portion of the IADC contract titled
"Contractors Special Provisions." These records are kept by Nabors Industries, Inc. in the
regular course and scope of business, and it was the regular course of business of Nabors
Industries, Inc. for an employee or representative of Nabors Industries, Inc., with
knowledge of the act or event that was recorded, to make these records or to transmit the
information to be included in these records. These records werc madc at or near the time
or reasonably soon after the act or event that was recorded.

23 Attached as Exhibit l-D to my affidavit is a true and conect copy of the 2010 IADC
Drilling Contract between Nabors and Penn Virginia MC Energy, LLC, and attached as
Exhibit l-E is a true and correct copy of the portion of the IADC contract titled
"Contractors Special Provisions." These records are kept by Nabors Industries, Inc. in the
regular course and scope ofbusiness, and it was the regular course ofbusiness ofNabors
Industries, Inc. for an employee or representative of Nabors Industries, Inc., with
knowledge of the act or event that was recorded, to make these records or to transmit the
information to be included in these records. These records were made at or near the time
or reasonably soon after the act or event that was recorded.

24. The records attached as Exhibits 1-F, 1-G, l-H, and 1-I are true and correct copies of
records that are kept by NCPS in the regular course and scope of business, and it was the
regular course of business of NCPS for an employee or representative of NCPS, with
knowledge of the act or event that was recorded, to make these records or to transmit the
information to be included in these records. These records were made at or near the time
the act or event that was recorded."

Sworn to and subscribed before me by on the Éã*of June, 2015.

ú
Notary in and for the ofTexas
MAny D. Hotstilcroil My Commission expires
Notory Publlc, Stote of T6xos
My Commtsrlon Expkês
Moy 05, 20tt
NABORS DISPUTE RESOLUTION
PROGRAM and RULES

Copies thís pamphlet are availahle in S¡sanish, upon
o,.f
rer|u.e st, .fi' o m anj, J$a b or,v s u b s i d i a ry' s Hu il1.c¿lt
Resouvees Deparfinent.

Copías de eslefall.eto esldtt dispontble en espafiol con
solo requeriúas al Depa{lamenfo de Recurso^r
tr,, * "..n n nu
^ Ê;¡HlþlT'¡*fl[ri.,'1. t,
^".
^t^
THE Ì BORS DISPUTE RESOLUTION P} GRAM

1. Purpose and Construction

The Prograrn is designed to pt'ol'ide a means for the quick,
fair, accessible, and inexpensive resolufion of Disputes
between the Company and the Company's
present a¡d fornrer Employees and Applicants for
enrployment , ñated to or arising out of a cürrcnt, forrne¡
or potsntial employment relationship with the Company.
The Prograrn is intended to öreatÉ an exclusive procedural
mechanism for the final ¡esolution of all Disputes falling
within its terms. It is not inlended eitler to abridge or
enlarge substantive rights available under applicable law,
The Program contractually modifies the "at-wili" employ-
mÉnf' relafiunship'"'betq'eet''tlte Company -'and its
Employees, but only to the extent expressly stated in the
Program. The Program should be interpreted in accor-
dance with fhese putposes.

2, I)efïnítions

A. '¿AAA" rüeaüs the Arnerican Arbitration Assosiation,

B. '!JAN{S" means Judiciai Arbitration and Mediation
Servises.

C. The 'oAct" meåns the Federal Arbit¡ation Aot,
9 U.S.C.$1, et seq., as amended frc¡m time to time'

D. "Company" means Sponsor and every direct ot
indiresl subsidiary (wbether a corpotation, lirnited
liability cornpâny, company partnership or other legal
entity) of Sponsor, any Electing Eniity, any entity oi
person alleged to have joint and several liability
concerning aly Dispute, and all of their ditectors,
officers, employees, and agents, every plan ofbene'
fìts, whether or not tax-exempt, established or main-
tained by any such entity, the fiduciaries, agents and
employees of all suct¡ plans, and thç successors and
assigns ofall such entities, plans and persons; provÍd-
ed, however, that in the case of an Electing Entity,
"Company" shall include the Electing Entity oúly tc
the exlent provided in the Electing Entity's agrcement
to Lre borurd by the Prograrn.

E. "Dispute" means ali legal arrd equitable elaims,
demands, a¡d controversies, of whalever nature or
kind, whether in contract, tort, under statufe or regu-
Iation, or sóme other law, between persons bound by
tlre Program or by an agrcement to resolve Disputes
ler the Ptogtam, or between a person i nd by the
Program and a person or entity otherwise entitled to
its benefits, including, but not lirnited to, any
matters wilh respect to:

l. this Program;

2. the employment or polential reemployment of an
Employee, including the terms, conditions, or
termination of such employment with the
Company;

3. employee benefits or incidents of employrnent
with the Company;

4: any 'ofher"matter reiated -to- or çoncerníng^the '- '-
relationship between the Employee and the
Company includÍng, by way of example and
wifhout limitati on, allegations ofi discri¡nination
based on race, sex, religion, national origin, age,
veteran status or disability; sexual or olher kinds
of harassment; workers' compensafion retalia-
tiorr; defanratiorr; infliction of emotional disüess,
ârtitrust claim concenring wages or otherwiso, or
status, claim or membership with regard to any
employee benefit plan;

5. arr Applicant's application for employment and
the Company's actions and decisions regarding
such application; and

6. any personal injury allegedly incuned in or about
a Company worþlace or in the coulse and scope
of an Employee's employmenl

"Dispute" includes all such mattcrs regatdless of
when the çvents on which they are based occurred,
including mattel:s based on events oceurring before
the Employee became subject to this Program (so
long as such disputes were not previously asserted in
a judioial forum) or affer termination of the employ-
ment ¡elationship"

F. "Electing Entity" mearis any legal entity that has
agreed ts be bound by the Program as provided herein.

G. "Etnployee" rneans ¿üy person who is or has been in
the employment of tbe Comparry on or afer the effec-
tive date of this Prograrn, rvhether ot not empltyed af
the rime a claim is brought with respect to a Dispute,
residirrg in the United States, or otherwise subject to
lau,s of the United States or any statÊ, ricipality,
or other polilical subdivision of the Uniteo States,

if, "Applicant" llreâns any person u'ho is seekirrg or has
sought employmont u'ith the Company affer the effec-
tive date of this Program.

I. "Parly" meills, with respect to ¿ patticular Dispute,
affecled pe1'solls a¡dlor' enlities bounci try this
Prograrn,

.1. "Progrårn" lrealls this Nabors Dispute Rcsolurion
Program, as anrended ftotn time to time.

K. "Rules" rneans the Nsbors Dispute Resolution Rttles,
. .as arnencle>
Filed: 6/18/2015 4:58:00 PM

CAUSE NO. 2014-42519

ALFREDO DE LA GARZA, $ IN THE DISTRICT COURT OF
INDIVIDUALLY ANd AS NEXT FRIEND $
FoR $
, minors $
$
$ HARRIS COUNTY, TEXAS
$
PENN VIRGINIA OIL & GAS, L.P., $
PENN VIRGINIA OIL & GAS GP, LLC, s
MIKE FERGUSON, TRIFECTA $
OILFIELD SERVICES, LLC, CUDD $
PRESSURE CONTROL, INC., $
ROYWELL SERVICES, INC. and OAKS $
PERSONNEL SERVICES, INC. d/b/A ö
THE OAKS GROUP $ 28IST ruDICIAL DISTRICT

DEFENDANTS, PENN VIRGINIA OIL & GAS, L.P. AND PENN VIRGINIA OIL & GAS
GP. LLC'S MOTION TO COMPEL ARBITRATION AND TO ABATE

Defendants, Penn Virginia Oil & Gas, L.P. and Penn Virginia Oil & Gas GP, LLC

(collectively referred to hereinafter as "Penn Virginia" unless individual reference is necessary)

file this Motion to Compel Arbitration and to Abate pending such arbitration. In support thereof,

Penn Virginia would show as follows:

I.INTRODUCTION

1. Plaintiff, Alfredo "Freddie" De La Garza ("Plaintiff'or "De La Garza"),

Individually and as Next Friend of , and

Intervenor, John Paul "J.P." Adame ("Adame"), Individually and as Next Friend of

, (collectively "the parties") filed

personal injury claims against Penn Virginia on July 24, 2014 and Novembet 6, 2014,

respectively. Their claims arise out of an April 29,2014 incident, which occurred at a well site

EXHIBIT "A''
located near Shiner, Texas while De La Garza and Adame were working in the course and scope

of their employment with Nabors Completion & Production Co. ("NCPS").

2. Nabors Industries, Inc. ("Nabors") and its subsidiaries, one of which is NCPS,

have a valid arbitration agreement which requires that disputes involving injuries to employees

that are incurred during the course and scope of employment be submitted to final and binding

arbitration. De La Garza and Adame both acknowledged and accepted the terms of the

arbitration agreement.

3. The arbitration agreement applies to all direct and indirect subsidiaries of Nabors,

all current and former employees of the aforementioned subsidiaries, and any "Electing Entity"

that has agreed to be bound by the terms of the agreement.r Penn Virginia is an "Electing Entity"

and has agreed on more than one occasion to be bound by the terms of the agreement.z De La

Garza's and Adame's individual claims fall within the scope of the arbitration agreement as both

were employees of NCPS at the time of the incident and allege that their injuries occurred while

in the course and scope of their employment. De La Garza and Adame also filed claims as

representatives of their minor children. The minors' claims are also subject to the arbitration

agreement as they are derivative of De La Garza and Adame's claims. Consequently, De La

Garza and Adame's individual claims against Penn Virginia and the claims filed on behalf of

their minor children all fall within the scope of the arbitration agreement.

4. Therefore, Penn Virginia's Motion to Compel Arbitration should be granted, and

this case should be abated or dismissed and compelled to final and binding arbitration.

I See Nabors Dispute Resolution Program ("DRP'), a true and correct copy of which is attached as Exhibit 1-4.
2 See 2008 Penn Virginia Oil & Gas, LP IADC Contract, a true and correct copy of which is attached as Exhibit l-
B; see also Contractors Special Provisions, a true and correct copy of which is attached as Exhibit 1-C, at fl 16
"Operator, its parent, subsidiary and affiliated corporations, as well as the employees, officers and directors ofeach
(collectively, "Operator") is cognizant of the Nabors Dispute Resolution Program and wishes to become an Electing
Entity, as defined in that Program." See also 2010 Penn Virginia MC Energlt, LLC IADC Contract, a true and
correct copy of which is attached as Exhibit l-D; see also Contractors Special Provisions, a true and correct copy of
which is attached as Exhibit l-E, at fl 16.
II. I]NDISPUTED FACTS

5. Nabors is the "Sponsor" of the Nabors Dispute Resolution Program ("DRP"), as

that term is defined by the DRP.3

6. The DRP is subject to the Federal Arbitration Act ("FAA").4

7. By its terms, the Nabors DRP is designed to provide a means for the resolution of

disputes between the "Company" and the Company's present and former employees that are

related to or that arise out of a current or former employment relationship with the Company.s

8. The DRP is intended to create an exclusive procedural mechanism for the final

resolution of all disputes falling within its terms.6 Consequently, the DRP requires that all

disputes between De La Garza, Adame and the Company are subject to binding arbitration.T

9. The DRP defines "Dispute" to include personal injuries that arc incurred at the

worþlace or in the course and scope of employment.s

10. The DRP defines "Company" as "Sponsor and every direct and indirect

subsidiary...ofSponsor,@.',9Aspreviouslymentioned,Naborsisthe

3 Afiidavit oJ' Keith Nicholson ("Nicholson Afn "), a true and conect copy of which is attached as Exhibit I, at I 4;
see also Exhibit I -4, at fl 2(L).
fl fl 2(C) and 8. The Federal Arbitration Act, 9 U.S.C. $ 2, applies in state courts and preempts
a See Exhibit 1-A at

state anti-arbitration laws to the contrary. Circuit City Stores, Inc. v. Adams, 121 S.Ct. 1302;' Southland Corp v.
Keating,465U.S. 1, 16(1984); seealsoPalmHarborHomesv.McCoy,944S.W.2dT16,T2l (Tex.App.-Fort
Worth 1997) (holding that FAA preempted Texas Arbitration Act's requirement that party's attomey sign
agreement). Although the FAA preempts state arbitration laws, courts still must resort to general state law contract
principles to determine whether an arbitration agreement will be enforced.
5 ,Se¿ Exhibit l-4, at fl l.
6
See Exhibit l-4, at 'lf l.
7
See Exhibit l-4.
8 "Dispute" means all legal and equitable claims, demand and controversies, of whatever nature or kind, whether in
contract, tort, under statute or regulation, or some other law, between persons bound by the Program or by an
agreement to resolve Disputes under the Program, or between a person bound by the Program and a person or entity
otherwise entitled to its benefits, including, but not limited to, any matters with respect to...6. any personal injary
allegedly incuned ín or about a Company Workplace or ín the course and scope of an Employee's employment.
.See Exhibit 1-A at tf 2(E) (emphasis added).
e ,!¿¿ Exhibit l-A at !f 2(D) (emphasis added).
"Sponsor" of the DRP. NCPS, De La Garza and Adame's employer at the time of the workplace

incident, is a subsidiary of Nabors.r0 The DRP extends to and includes employees ofNCPS.rr

11. Further, Penn Virginia is an "Electing Entity" and agreed to be bound by the

terms of the DRP in two IADC Contracts between it and Nabors.l2 As an "Electing Entity," Penn

Virginia is required to resolve disputes with any past or present employee(s) or applicants of

Nabors in accordance with the DRP.I3

12. On January 2, 2013, Adame executed a document entitled "Application For

Hourly And Daily Employment," as well as another document entitled "Notice to Applicants

Regarding Dispute Resolution Program."l4 Likewise, on July 16,2013, De La Garza executed

the "Application For Hourly And Daily Employment" and the "Notice to Applicants Regarding

Dispute Resolution Program."l5 De La Garza and Adame, by their signatures, acknowledged and

agreed that they would be "required to adhere to the Dispute Resolution Program and its

requirement for submission of all claims to...arbitration."16

13. On January 7,2013, Adame also executed a document entitled "Employee

Acknowledgement Concerning Nabors Dispute Resolution Program."17 The document

specifically states, "I have received a copy of the Nabors Dispute Resolution Progtam."l8 De La

Garza executed the same document on J:uly 22, 2013.1e De La Garza and Adame, by their

to See Nicholson Aff. at\6.
tt See Nicholson Aff. atl 6; see also Affidavit ol Katherine Ryan, a true and correct copy ofwhich attached as
Exhibit 2.
t2 Nicholson Aff. at\l7 through 9; see also Exhibits 1-B and 1-D; see a/so Exhibits 1-C and l-E, at fl 16.
See
t3 See Nicholson Aff. at \ l0; see als o Exhibits I -B - I -G.
ta See Nicholson Aff. atl L2; see also Exhibit I -F.
ts See Nicholson Aff. atl L6; see also Exhibit I -G.
t6 See Nicholson Aff. atll 12 and 16; see also Exhibit 1-F and l-G.
t7 Nicholson Aff. atl 13; see also Exhibit I -H.

fl 13; see also Exhibit l-H.
t8 Nicholson Aff. at
te Nicholson Aff. atl 17; see also Exhibit I -I.
signatures, again acknowledged and agreed that they would be "required to adhere to the Dispute

Resolution Program and its requirement for submission of all claims to. . . arbitration."2O

14. On April 29,2003, Adame was hired by Nabors V/ell Services, Ltd. as a crew

worker.2l On January 7,2013, as a result of a business reorganization, he became a crew worker

for NCPS when Nabors Well Services, Ltd. liquidated into Nabors Well Services, Co., which

liquidated and dissolved into NCPS .22 As a crew worker, Adame's job duties and responsibilities

included the operation of hand and power tools to perform maintenance and repairs to oil or gas

wells and related equipment. Adame's job duties also involved activities associated with rigging-

up and rigging-down workover rigs, pulling levers or tuming handles to extend hydraulic or

screw-type jacks to support and level the rig, laying steel production rods, tubing, and casing,

and other tasks necessary to support operations.23 Adame's job duties and responsibilities did not

include the movement of goods in interstate commerce.2a While employed by NCPS, Adame was

never employed as a commercial truck driver or transportation worker.25

15. On July 22,2013, De La Garzawas hired by NCPS as a crew worker.26 As a crew

worker, De La Garza'sjob duties and responsibilities included the operation of hand and power

tools to perform maintenance and repairs to oil or gas wells and related equipment. De La

Garza's job duties also involved activities associated with rigging-up and rigging-down

workover rigs, pulling levers or turning handles to extend hydraulic or screw-type jacks to

support and level the rig, laying steel production rods, tubing, and casing, and other tasks

necessary to support operations.21 DeLa Garza'sjob duties and responsibilities did not include

20
Nicholson Aff,, at flfl 13 and 17; see also Exhibit I -E.
2t Nicholson Aff. atnÁ.
22
Nicholson Aff at fl 14.
23
Nicholson Aff. atl 14.
24
Id.
25
Id.
26
Nicholson Aff. at tf 18.
21
NicholsonAff. attf 18.
the movement of goods in interstate commerce.2s While employed by NCPS, De La Garza was

never employed as a commercial truck driver or transportation worker.2e

16. On July 24, 2014, De La Garua filed his Original Petition, and on September 8,

2014 and October I, 2014, De La Garza filed his First and Second Amended Petitions.30

Likewise, on November 6, 2014 and February 19, 2015, Adame filed his Original and First

Amended Petitions in Intervention.3l A copy of all pleadings are maintained in the Court's

records. De La Garza and Adame allege that on April 29,2014 and while working for NCPS,

they were injured when a piece of NCPS line pipe parted, causing both to be thrown back as a

result ofthe released pressurized gas.32

III. SUMMARY OF THE ARGUMENT

17. The Company (defined to include Nabors, its subsidiaries, and any "Electing

Entity") has a valid arbitration agreement, which both De La Gana and Adame acknowledged

and accepted. Because Penn Virginia is an "Electing Entity," the parties' claims against Penn

Virginia fall within the scope of the arbitration agreement. Consequently, the parties' claims

must be submitted to final and binding arbitration in accordance with the DRP. Therefore, Penn

Virginia's Motion to Compel Arbitration should be granted and this case should be abated.

IV. ARGUMENT & AUTHORITIES

18. Pursuant to the DRP, the parties' lawsuit must be submitted to binding arbitration.

It is undisputed that Texas courts recognize that arbitration agreements in an "at-will"

employment setting apply to personal injury claims. In fact, there is a strong presumption in

Texas favoring arbitration. See Circuit City Stores, Inc. v. Adams, l2l S. Ct. 1302 (2001);
28
Id.
2e
Id.
30 s Original Petition, First Amended Petition, and Second Amended Petition.
Plaintiff
3rAdame's Original Petition in Intervention and First Amended Petition in Intervention.
32 SeePlaintifls Original Petition and First Amended Petition, as well as Adame's Original Petition in Intervention

and First Amended Petition in Intervention.
Cantella & Co. v. Goodwin,924 S.W.2d 943 (Tex. 1996); Jack B. Anglin v. Tipps,842 S.V/.2d

266, 268 (Tex. 1992). If a valid arbitration agreement exists, and the claims are within the

agreement's scope, atrial court has no discretion and must compel arbitration. Cantella,924

S.W.2d at 944; Shearson Lehman Bros., Inc. v. Kilgore, 871 S.W.2d 925, 928 (Tex. App.-
Corpus Christi, 1994, orig. proceeding).

19. The clear language of the DRP states that the Federal Arbitration Act, 9 U.S.C. $

1, et. seq. ("FAA") controls.33 The Texas Supreme Court has held that in cases where the FAA

is stated in the agreement as the controlling law, the FAA prevails. EZ Pawn Corp. v. Mancias,

934 S.V/.2d 87,91 (Tex. 1996). In adjudicating a motion to compel arbitration under the FAA,

courts generally try to determine whether the parties agreed to arbitrate the dispute in question.

Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626 (1985); Folse v.

Richard Wolf Medical Instruments Corp., 56 F.3d 603, 605 (5th Cir. 1995); R.M. Perez &

Assocs., Inc. v. IIlelch, 960F.2d,534, 538 (5th Cir. 1992).

20. Under the FAA, the court applies ordinary state contract law principles in order to

decide whether a valid arbitration agreement exists. See In re D. ll'ilson Constr. Co., 196 S.W.3d

774, 781 (Tex. 2006) (citing First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944

(1995)); 9 U.S.C.A. $ I et seq.; Ctv. Pnec. & REn¿. Cone $ 171.001 et seq. Once a valid

arbitration agreement is established, a presumption attaches favoring arbitration. Dallas

Cardiology Assoc., P.A. v. Mallick,978 S.W.2d 209,212 (Tex. App.-Dallas, 1998, pet. denied).

Then Court must then determine whether the arbitration agreement covers the non-movant's

claims. In re Jim Walter Homes, lnc.,207 S.W.3d 888 (Tex. App.-Houston [14th Dist.] 2006).

In doing so, a court must focus on the complaint's factual allegations rather than the legal causes

of action asserted. Id.

33 .S¿e Exhibit 1-A at fl !f 2(C) and 8.
21. Thus, two questions guide the determination of whether Penn Virginia's Motion

to Compel should be granted: 1) is there a valid agreement to arbitrate; and 2) does the dispute in

question fall within the scope of the agreement? Associated Glass, Ltd. v. Eye Ten Oaks Invs.,

Ltd., 147 S.W.3d 507,511 (Tex. App.-San Antonio 2004, no pet.).

A. Valid Aereement to Arbitrate

22. An "at-will" employee who receives notice of an employer's arbitration policy

and continues or commences employment accepts the terms of the agreement as a matter of law.

See In re Halliburton, 80 S.V/.3d 566 (Tex. 2002); In re Dallqs Peterbilt, Ltd., L.L.P., 196

S.W.3d 16l, 162 (Tex. 2006) . In Halliburton, the employer created a dispute resolution program

which obligated both employees and the employer to arbitrate all disputes between them. See

Halliburton, 80 S.V/.3d at 566. The Texas Supreme Court held that the employer was justified

in giving notice to all employees of the program and informing them that by continuing to work

after the adoption of the program, employees would be considered to have accepted the program.

See id at569-71.

23. Four years later, the San Antonio Court of Appeals extended Halliburton even

further. Relying on Halliburton, lhe Fourth Court of Appeals compelled arbitration where the

employee expressly refused to sign an arbitration agreement but continued to work after

receiving notice of the arbitration requirement. In re &RGT, Inc.,2006WL 622736 (Tex. App.-
San Antonio 2006, orig. proceeding).

24. It should also be noted that the San Antonio Court of Appeals has specifically

considered the Nabors DRP and held that it is valid and enforceable on multiple occasions. S¿e

NDUSA USA, LP v. Pena,385 S.W.3d 103 (Tex. App.-San Antonio 2012, pet. denied);

NDUSA USA, LP v. Carpenter, 198 S.V/.3d 240,249 (Tex. App.-San Antonio 2006, orig.
proceeding). Furthermore, in October 2013 and, then again in December 2013, the Texas

Supreme Court denied the family of a deceased Nabors' employee's petition for review when the

family sought to reverse the Fourth Court of Appeals' determination that the DRP was valid and

enforceable. See Pena,385 S.W.3d 103

25. De La Garza and Adame executed documents on several occasions that clearly

express both parties' agreement to the terms of the DRP.3a The documents specifically state that

De La Gana and Adame acknowledged receiving, reviewing, understanding, and accepting the

DRP's requirement to submit disputes to arbitration.3s De La Garza and Adame's signatures on

the aforementioned documents is strong evidence of their actual acknowledgment and agreement

that they are required to adhere to the DRP. See In re Bunzl USA, 155 S.V/.3d 202 (Tex. App.-
El Paso 2004, orig. proceeding).

26. De La Garza and Adame accepted the terms of the DRP as a maller of law.

Therefore, a valid and enforceable agreement to arbitrate was formed. In re Palm Harbor

Homes, Inc., 195 S.W.3d 672,676 (Tex. 2006).

B. The Disnute Falls Within the Scope of the Asreement

27. The parties' claims fall within the scope of the DRP. The DRP requires that

disputes between the Company (defined as Nabors, its subsidiaries, and any "Electing Entity")

and its current or former employees be submitted to arbitration. According to the parties'

Petitions, De La Garza and Adame were both employees of a Nabors' subsidiary (NCPS) and

both were allegedly injured while in the course and scope of their employment. Consequently,

this dispute, which is between NCPS employees and Penn Virginia (an "Electing Entity"), falls

within the scope of the agreement.

3a
See Nicholson Aff, atfl\ 12,73,16, and l7; see also Exhibits 1-F - l-I.
3s
NicholsonAff. at!ffl 12, 13, 16, and l7;see also Exhibits l-F - 1-I.
28. Whether a claim falls within the scope of an arbitration agreement depends on the

factual allegations of the complaint rather than the legal causes of action asserled. Prudential

Secs., Inc. v. Marshall, 909 S.W.2d 896, 899 (Tex. 1995) ; Ikon Office Solutions, Inc. v. Eifert, 2

S.W.3d 688,697 (Tex. App.-Houston !4th Dist.l 1999, orig. proceeding); Prudential-Bache

Secs., Inc. v. Garza,848 S.V/.2d 803, 807 (Tex. App.-Cotpus Christi 1993). Based on the

factual allegations contained in the parties' pleadings, the parties' claims fall squarely within the

scope of the DRP.

29. It is undisputed that De La Garza and Adame were employed by NCPS, which is

a Nabors subsidiary.36 It is undisputed that La Garza and Adame both alleged that they were

injured at the worþlace and/or in the course and scope of their employment.3T

30. De La Garza and Adame signed an acknowledgement that specifically states, "I

have received a copy of the Nabors Dispute Resolution Program...and understand that I am

required to adhere to the Dispute Resolution Program and its requirement for submission of

disputes to...arbitration."38 All of these terms are clearly defined in the DRP.

31. The DRP clearly and unequivocally states that it "applies to and binds the

Company, each Employee and Applicant."3e The DRP defines "Dispute" to include any personal

injury that is incurred at the worþlace or in the course and scope of employment.a0 According

to the DRP, "Company" means "Sponsor and every direct and indirect subsidiary...of Sponsor,

(and) any Electing Entity."+t

36 Nicholson Aff.atn T 6, ll through 15; see a/so Plaintiffs Original Petition and First Amended Petition, and
Adame's Original Petition in Intervention and First Amended Petition in Intervention.
37 S¿e Plaintifls Original Petition and First Amended Petition and Adame's Original Petition in Intervention and

First Amended Petition in Intervention.
38
NicholsonAlf. atfltf 13 and 16; see also Exhibits l-H and 1-I (emphasis added).
3e,S¿e Exhibit 1-4, at rlf l.
ao,S¿¿ Exhibit 1-A at !f 2(E).
al See Exhibit 1-A at 2(D).
!f
32. Nabors is the "Sponsor" of the DRP.a2 NCPS is a subsidiary of Nabors.a3 Penn

Virginia is an "Electing Entify" and agreed that it is bound by the terms of the DRP.44 Therefore,

Penn Virginia falls within the scope of the "Company."

33. The parties' claims clearly fall within the scope of the arbitration agreement.

Consequently, Penn Virginia's Motion to Compel Arbitration should be granted and this case

should be abated or dismissed and compelled to final and binding arbitration.

V. CONCLUSION

34. Nabors has instituted a comprehensive dispute resolution program, which requires

arbitration of disputes between the Company (which is defined as Nabors Industries, Inc., its

subsidiaries, and any "Electing Entity") and current or former employees. De La Garza and

Adame unequivocally agreed to adhere to the DRP and its requirement to submit all claims to

arbitration. The DRP applies to personal injuries that occur at the worþlace or while the

employee is in the course and scope of his employment. Therefore, the parties' claims, as

asserted in this lawsuit, are subject to the terms of the DRP. Consequently, Penn Virginia's

Motion to Compel Arbitration should be granted and this case should be abated or dismissed and

compelled to final and binding arbitration.

PRAYER

For the foregoing reasons, PENN VIRGINIA OIL & GAS, L.P. and PENN VIRGINIA

OIL & GAS GP, LLC request that the Court grant this Motion, abate or dismiss this action, and

order that the claims asserted by Alfredo De La Garza,Individually and as Next Friend of I

, and Intervenor, John Paul Adame, Individually and as

Next Friend of , be

42
Nicholson Aff. atl4; see also Exhibit 1-4, at fl 2(L).
43
NicholsonAff. atl 6.
4 See Nicholson Aff. at\l7 through L0; see also Exhibits l-C and 7-8, at Contractors Special Provisions,llí.
compelled to final and binding arbitration. PENN VIRGINIA OIL & GAS, L.P, and PENN

VIRGINIA OIL & GAS GP, LLC further request all other relief to which they are entitled.

Respectfully submitted,

/s/ Thomas J. Smith
Thomas J. Smith
State Bar No. 00788934
tsmith@gallowayj ohnson. com
Kelly C. Hartmann
State Bar No. 24055631
khartmann@gall owayj ohn son. c om
Alexis B. Hester
State Bar No. 24072807
ahester @gall owayj ohns on. com
G¡nowev, JoFrNSoN, TotuprrNs
Bunn & Svnn
1301 McKinney, Suite 1400
Houston, Texas 77010
(713) s99-0700
(7 I 3) 599-07 77 - facsimile

Attorneys for Defendants, Penn VÍrgÍnia
OÍI8t Gas, L.P. and Penn VirgÍnÍa OiI &
Gas GP, LLC
CERTIFICATE OF SERVICE

I hereby certiff that a true and correct copy of the foregoing document has been served
electronically, by and through the Court approved electronic filing manager, to participating
parties on this 18th day of June 2015, as follows:

John David Hart J. Javier Gutierrez
Llw Orrrcns OF Jorn D.nvrn Hlnr Ana Laura Gutierrez
Wells Fargo Tower Tun GurrnRnnzLtw Fmvr, Inc.
201 Main Street, Suite 1720 700 East Third Street
Fort V/orth, T exas 7 6102 Alice, Texas 78332
Phone 817-870-2102 Phone 361-664-7377
Fax 817-332-5858 Fax 361-664-7245
Counsel for Plaintiff, Individually and as Counsel for fntervenor,
Next Friend of .fohn Paul Adøme, Indìvìdually and øs Next
Minor Chíldren Friend of

Benjamin A. Escobar, Jr.
Brit T. Brown
BEIRNE' M¡yll,lRn & Plnson, L.L.P.
1300 Post Oak Blvd., Suite 2500
Houston, Texas 77056
Phone 713-623-0887
Fax 713-960-1527
Coansel for Defendant, Cudd Pressure
Control, Inc.

/s/ Thomas.I. Smith
Thomas J. Smith
CAUSE NO. 2014-42519

ALFREDO DE LA GARZA, $ IN THE DISTRICT COURT OF
INDIVIDUALLY ANC1 AS NEXT FRIEND $
FOR $
mlnoïs $
$
ç HARRIS COLINTY, TEXAS
$
PENN VIRGINIA OlL & GAS, LP, 0
PENN VIRGINIA OIL & GAS GP, LLC, $
MIKE FERGUSON, TRIFECTA 0
OILFiËLD SERVICES, LLC, CUDD $
PRESSURE CONTROL, INC., $
ROYWELL SERVICES,INC. and OAI(S Ò

PERSONNEL SERVICES, lNC. cllb/a $
ST
THE OAI(S GROUP a 28 1 JUDICIAL DISTRICT

VE,RIFICATION

STATE OF TEXAS $
$
COUNTY OF HARRIS $

BEFORE ME, the undersignecl authority on this day personally appeared Thomas J.

Smith, who after being cluly sworn upon his oath stated as follows:

1. "My narne is Thomas J. Smith. I am over twenty-one (21) years of age. I am of sound

mincl anct in all ways competent to make this verification,

2. I am one of the attomeys of record for Dcfendants, Penn Virginia Oil & Gas, L.P. and

Penn Virginia Oil & Gas GP, LLC. I have personal knowledge of the facts stated in this affidavit

and those facts are truc and correct.

3. I have revicwcd the foregoing Motion to Compel Arbitration and to Abate this case

pcnding such arbitration. In nly personal knowledge, the Motion truly and correctly recites the

factual allegations set forth in tire pleadings ancl the evidence in the trial court record,"
J

SUBSCRIBED ÀND,SWORN TO before me a notary public, which witness mY hand
and seal of this office this/fday of June, 2015.

Notary Public in and for ofTexas
THoNDA SÇilMrZ
Nolory Publlc, Slote of Texqs
MyCommlsslon Êxpkcs
Dacrmber 13,2018
CAUSE NO. 2014-42519

ALFREDO DE LA GARZA, $ IN THE DISTRICT COURT OF
INDIVIDUALLY ANd AS NEXT FRIEND $
FOR $
, minors $
$
$ HARRIS COLINTY, TEXAS
$
PENN VIRGINIA OTL &, GAS, LP, $
PENN VIRGINIA OTL & GAS GP, LLC, $
MIKE FERGUSON, TRIFECTA $
OILFIELD SERVICES, LLC, CUDD $
PRESSURE CONTROL, INC., $
ROYV/ELL SERVICES, INC. and OAKS $
PERSONNEL SERVICES, INC. d/b/A $
ST
THE OAKS GROUP $ 28 I JUDICIAL DISTRICT

AFFIDAVIT OF KEITH NICHOLSON

STATE OF'TEXAS $
$
,*
COLINTY OF HARzuS Y

Before me, the undersigned notaryo on this day personally appeared Keith Nicholson, the
affrant, a person whose identity is known to me. After I administered an oath to affiant, the
affiant testified:

I "My name is Keith Nicholson. I am over 18 years of age, of sound mind, and capable of
making this affidavit. The facts stated in this affrdavit are within my personal knowledge
and are true and correat.

2. I am Assistant General Counsel for Nabors Corporate Services, Inc.
a
J In my capacity as Assistant General Counsel, I am required to be familiar with Nabors
Industries, Inc.'s corporate structure and the relationship of its various subsidiaries and
affiliated companies. I am also required to be familiar with the Nabors Dispute
Resolution Program ("DIUt"¡.

4 Nabors Industries, Inc. is the "Sponsor" of the Nabors DRP as that term is defined by the
DRP. A true and correct copy of the DRP is attached to my affrdavit as Exhibit 1-4.

5 The DRP provides that it applies to all direct and indirect subsidiaries of Nabors
Inclustries, Inc., as well as all "Electing Entities" that have agreed to be bound by same.

6. Nabors Completion & Production Services Co. ("NCPS") was a subsidiary of Nabors

EXHIBIT "I"
Industries, Inc. at the time of the Aprl|29,2014 incident which makes the basis of the
lawsuit.

7 On September 23,2008, Penn Virginia Oil & Gas, LP agreed to be bound by the DRP as
an "Electing Entity" in the "Contractors Special Provisions" containsd in the International
Association of Drilling Contractors ("IADC") Drilling Contract between it and Nabors
Drilling USA LP. A true and correct copy of the IADC Contract is attached in its entirety
to my affidavit as Exhibit 1-8. The Contractors Special Provisions portion has been
putled out for reference and is attached as Exhibit 1-C.

I The Contractors Special Provisions page states at paragraph l6 that "Operator, its parent,
subsidiary, and affiliated corporations,..(collectively "Operator") is cognizant of the
Nabors Dispute Resolution Program and wishes to become an Electing Entity, as defined
in that Program. Accordingly, Operator and Nabors Industries, Inc. ("Nabors") hereby
agree that Operator is an Electing Entity..."

9 In addition, on September 8,2010, Perur Virginia MC Energy, LLC agreed to be bound
by the DRP as an "Electing Entity" in the "Contractors Special Provisions" contained in
the International Association of Drilling Contractors ("IADC") Drilling Contract between
it and Nabors Drilling USA LP. A true and correct copy of the IADC Contract is attached
in its entirety to my affidavit as Exhibit I -D. The Contractors Special Provisions portion
has been pulled out for reference and is attached as Exhibit l-E. It is my understanding
that Penn Virginia MC Energy, LLC is a subsidiary or affiliated corporation of Penn
Virginia Oil & Gas, LP andlor Penn Virginia Oil & Gas GP, LLC,

l0 As an "Electing Entity," Defendants, Penn Virginia Oil & Gas, LP and Penn Virginia Oil
& Gas GP, LLC are required to resolve disputes with any past or present employee(s) or
applicant(s) of Nabors Industries, Inc. or its subsidiaries in accordance with the DRP.

l1 Based upon my review of the personnel file of Mr. Adame, I can confirm that Mr. Adame
was employed by NCPS, and that he executed various documents that acknowledged that
he received, reviewed, and accepted the terms and conditions of the DRP.

12, Specifically, my review of the relevant documents confirms that on January 2,2013,Mr.
Adame executed a document entitled "Application For Hourly And Daily Employment,"
ahue and correct copy of which is attached as Exhibit 1-F. Mr. Adame acknowledged
and agreed by his signature that he is "required to adhere to the Dispute Resolution
Program and its requirement for submission of all claims to...arbitration."

13 Further, on January 7,2013, Mr. Adame executed a document entitled "Employee
Acknowledgement Concerning Nabors Dispute Resolution Progtam," a true and correct
copy of which is attached as Exhibit l-H. The document specif,rcally states, "I have
received a copy of the Nabors Dispute Resolution Program." Mr. Adame acknowledged
and agreed by his signature that he is "required to adhere to the Dispute Resolution
Program and its requirement for submission of all claims to.,.arbitration."
t4. Mr. Adame was employed by NCPS as a crew worker. As a crew worker, Mr. Adame's
job duties and responsibitities included the operation of hand and power tools to perform
maintenance and repairs to oil or gas wells and related equipment. Mr. Adame's job
duties also involved activities associated with rigging-up and rigging-down work over
rigs, pulling levers or turning handles to extend hydraulic or screw-type jacks to support
and level the rig, laying steel production rods, tubing, and casing, and other tasks
necessary to support operations. While employed by NCPS, Mr. Adame was never a
commercial truck driver or transportation worker.

l5 Based upon my review of the personnel frle of Mr, Alfredo De La Gatza,I can confirm
that Mr. De La Garza was employed by NCPS, and that he executed various documents
that acknowledged that he received, reviewed, and accepted the terms and conditions of
the DRP.

16 Specifically, my review of the relevant documents confir'ms that on July 16, 2013, Mr. De
La Garza executed a document entitled "Application For Hourly And Daily
Employment," a true and correct copy of which is attached as Exhibit 1-G. By his
signature, Mr. De La Garza acknowledged and agreed that he is "required to adhere to the
Dispute Resolution Program and its requirement for submission of all claims
to. ..arbitration,"

17. Further, on July 22,2013, Mr. De La Garza executed a document entitled "Employee
Aoknowledgement Concerning Nabors Dispute Resolution Program," a true and conect
copy of which is attached as Exhibit 1-I. The document specifically states, "I have
received a oopy of the Nabors Dispute Resolution Program." Mr. De La Garua
acknowledged and agreed by his signature that he is "required to adhere to the Dispute
Resolution Program and its requirement for submission of all claims to. . . arbitration."

18 Mr. De LaGarua was employed by NCPS as a crew worker. As a crew worker, Mr. De
La Garza'sjob duties and responsibilities included the operation of hand and power tools
to perform maintenance and repairs to oil or gas wells and related equipment. Mr. De La
Garza's job duties also involved activities associated with rigging-up and rigging-down
work over rigs, pulling levers or turning handles to extend hydraulic or screw-type jacks
to support and level the rig, laying steel production rods, tubing, and casing, and other
tasks necessary to support operations. Mr. De La Garza'sjob duties and responsibilities
did not include the movement of goods in interstate commerce. While employed by
NCPS, Mr. De LaGarza was never a commercial truck driver or transportation worker.

19. At all times relevant to this matter, NCPS was engaged in interstate commerce as it was
in the business of providing services for the development of oil and gas resources that are
placed into commerce in both Texas and other states of the United States.

20. On information and beliet Penn Virginia is also engaged in interstate commorce as it is
in the business of producing oil and gas resources that are placed into commerce in both
Texas and other states of the United States.
21 Attached as Exhibitl-A to my affidavit is a true and correct copy of Nabors Industries,
Inc.'s DRP booklet, in English and Spanish, respectively. These records are kept by
Nabors Industries, Inc. in the regular course and scope of business, and it was the regular
course of business of Nabors Industries,Inc. for an employee or representative of Nabors
Industries, Inc,, with knowledge of the act ot event that was recorded, to make these
rçcords or to transmit the information to be included in these records. These records were
made at or near the time or reasonably soon after the act or event that was recorded.

22. Attached as Exhibit 1-B to my affidavit is a true and correct copy of the 2008 IADC
Drilling Contract between Nabors and Penn Virginia Oil & Gas, LP, and attached as
Exhibit l-C is a true and correct copy of the portion of the IADC contract titled
"Contractors Special Provisions." These records are kept by Nabors Industries, Inc. in the
regular course and scope of business, and it was the regular course of business of Nabors
Industries, Inc. for an employee or representative of Nabors Industries, Inc., with
knowledge of the act or event that was recorded, to make these records or to transmit the
information to be included in these records. These records werc made at or near the time
or reasonably soon after the act or event that was recorded.

23 Attached as Exhibit l-D to my affidavit is a true and correct copy of the 2010 IADC
Drilling Contract between Nabors and Penn Virginia MC Energy, LLC, and attached as
Exhibit 1-E is a true and correct copy of the portion of the IADC contract titled
"Contractors Special Provisions." These records are kept by Nabors Industries, Inc. in the
regular course and scope ofbusiness, and it was the regular course ofbusiness ofNabors
Industries, Inc. for an employee or representative of Nabors Industries, Inc., with
knowledge of the act or event that was recorded, to make these records or to transmit the
information to be included in these records. These records were made at or near the time
or reasonably soon after the act or event that was recorded.

24. The records attached as Exhibits 1-F, 1-G, 1-H, and 1-I are true and correct copies of
records that are kept by NCPS in the regular course and scope of business, and it was the
regular course of business of NCPS for an employee or representative of NCPS, with
knowledge of the act or event that was recorded, to make these records or to transmit the
information to be included in these records. These records were made at or near the time
the act or event that was recorded."

FUR

Sworn to and subscribed before me by on the dâ* ofJune,20l5

ú -l-
(.>-
Notary in and for the ofTexas
MAnY D. HotstiletoN
Notory Publlc, Slole ot fetos
My Commission expires
My CommlErlon Explre8
Moy 05, 20tt
NABORS DISPUTE RESOLUTION
PROGRAM and RULES

Copies of this patnphlel are avqilahle in S¡tanislt, upon
vç.q'u e S t, .fr"rs m a nj' Jtl6 b or'ç s u Í¡ s i d i a 4t' s Hu ntcut
Re s out'ce s D eP arl m e nt.

C.opías de este folleîo e sl:Qtt disponible en español, con
sal.o requer'ùlas al Depa.rlamettîo de Recursos
t"t,, * -.,n a n r- ¡"'f¡A*,'t ñ t, ^..^
EX}fl BI T' ^t^
TIIE I. BORS DISPUTE RESOLUTION P} GRAM

1. Purpose and Construction

The Prograrn is designed to plovide &means for the quick,
fair, accessible, and inexpensive resôluti.on of Disputes
between Company and the Company's
the
present and formei Employees and Applicants for
enrploynrent, related fo or arising out of a current fo¡mer
or potenlial employment relationship with the Company.
The Program is intended to oreatÉ a¡r exclusive procedural
mechanisnr for the filal resolution of all Disputes falling
within its tenns. It is not inteuded either to abridge or
enlarge zubstantive rights available under applieäblë lãw
The Program contractually modifi es the'oat-wilf ' ernploy-
ilreûf relatiorrship" "bellÀ'eelí the Com¡rany "and its -'
Employees, but only to the extent expressly stated in the
Program. The Program should be interpreted in accor-
dance with these PutPoses.

2, I)cfÏnitions

A, '¿AAA" meâns the A¡nerican Arbitration Association'

B. "JAMS' means Judíoial Arbitration and Mediation
Servises,

C. The 'oAcÎ" meâns the Federal Arbi'ration Act,
9 U.S.C.ô1, et seq., as a¡rended from time to time'

D. "Coflipâny" means Sponsor and every direct or
indirect suhsidiary (whether a co¡poration, limited
liability company, courpany partnership or other legai
entity) of Sponsor, any Eiecting Entity, any entity or
psrson alleged to have joint and several liability
concerning aly Dispute, and all of their directors,
officers, employees, and agents, every plan ofbene-
fits, whether or not tax-exempt, establishcd o¡ main-
tained by any such entity, the fiduciaries, agents and
employees ofall suoh plans, and thç successors and
assÍgns ofall such entities, plans and persons; provicl-
ed, howcver, rhat in the case of an Electing Entity,
"Company" shall inolude the Electing Entity only to
the extent provided in the Electing Entity's agreement
to Lre borurd bY the Program.

E. "Dispute" means ali legal ald equitable elaims,
demands, a¡d controversies, of whatever nature or
kind, whether in contrac! tort, under staûite or regu'
lation, or sôme other law, between persons bound by
tlre Program or by an agleement to resolve Ðisputes
ler the Program, or between a person I nd by the
Program and a person or entity otberwise e¡titled to
its benefits, including, but not litnited to, any
matlers wilh respect tol

1. this Program;

2. the employmenl or potential reemployment of an
Employee, including the terms, conditions, or
terrnination of such employment with úe
Company;

3. employee'benefits or incidents of employment
with the Company;

-' ' 4; or concerning"'dre - '
any-"ul'her'matter rslated -to-
relationship between the Employee and tire
Company including, by way of example and
without limitatio4 allegations ofi discrimination
based on raoe, sex, religion, national origin, age'
veteraü status or disabifity; sexual or olher kinds
of harassment; workers' ccirnpensafion retalia-
tiou; defanration; infliction of emotional distress,
antitrust claim conoeming wages or othorwise, or
stâtus, claim or membership with regard to any
employee benefit plan;

5. an Applicant's application for employment and
the Company's actions and decisions regarding
such application; and

6. any personøJ injury allegedly incurred iu or about
a Company workplace or in the course and scope
of an Employee's employmenl

"Dispute" includes all such matters regatdless of
when the events on whioh they are based occurred,
including nlatters based on events occurrirrg before
the Ernployee became subject to this Program (so
long as such disputes were not previously asserted in
a judicial forurn) or after termination of the employ-
ment relationship.

F. "Electing Entity" means arry legal entity that has
agreed ts bc bound by the Program as provided herein,

G. "Enployee" rneans ¡uly person who is or has been in
the employment of the Company on or afer the effec-
tive date of this Prograni, rvhether o¡ not ernployed at
the time a olaim is brought with respecl to a Dispufe,
residing in the lJnited States, or oflerwise subject to
laq,s of the Uniied States or any state, ricipality'
or other polilical subdivision of the Uniteo States,

t'1. "Applicant" rneâns âny persôn u'ho is seeking or has
sought employmont u'ith thp Compary affer the effec'
tive date of fhis Program.

I. "Parly" tì1ealls, with respect to a panicular Dispute'
afiectcd petsons n¡d/ol enfities bouncl by this
Prograrn,

J. '?rogratn" meatts this l{abols Dispure Rcsolution
Program, as amelrded fioln time to tirne.

K. "Rules" means the Nabors Dispute Resolution Rules,
. .¿s amender;¡ririiritliù¡r I

{he tenlls olthis provisiun as a contìilictlt olnty enlpioylllLr¡ìi ijr crjrlfilrltcttscl¡iirìl;ento nìultlo y pt¡c(iÙ
{ìtiedar cosartc cl1 ciraìc¡uiei'tì1or]1ctrro, y¿ì sea pof tRi ¡rr:'lo r¡ Por l)tr(c de Ìa OOtnprrilia, sil: avisO ¡rtcvil:
t;
prcsen{ación d e c¿rr¡sn.

yo conrp'e:rdr; r¡rre rt)nguria ¡rar1c Cel ccnlcltirJo cicl Ptograinn r¡:rt::t
de viol¿io linrí!ar. los cictochos de los crlpioados gär'ilrrlizados por-el es{ldo o lirr lcy+s íi<{cr¡lc.s

(ìorr nti tccÒnozcg y entiùndo que sc rcquiere {Ltc yc ;uiripla c.rn cl I)Iôgì'1llra <Ji: lìes(tluciûti t1t i):s¡rrrtlrs .i c;
1-rnna
rcqrrisito sr.¡metsr cualquicr rìiipura a ult proccs(J quc ptrrtiera inclr¡ir la rlte<liación y/o cl irrltírtii¡c
dc
or)r-¡prerdo quu rrri empleo prc.sonle o tltriru cr.rn la Clontpañía rc¡:rcscnl'a ¡ni -¡eeo¡it,ci¡rljtri'Ll
cxpreso de los tél¡ri¡ro.s de cst:r disposicidn conlo conclicir'rtl dc rnicrtr¡rlco Pre$Õ¡lt¿ o li,lùro.
^riiciona¡¡cntc,

Nornbt'e del Ernpleaclo (Lelra de hnprenta/Molde) Irinna del firnpìcado

Fcch¡.
lllE l'Â.1N lN llMl'1.û1'!!lt sl¿¡ìvlc:u iTÍLl t.!

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INIÊRNANONAL ÂSSOCIATIOTI OF DRILLIT¡G COilTRACÎORS
DR¡LLING 8ID PROPOSAL
AND
DAYWORK DR]LLING CONTRAGT - U.S.

lOl

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thl.ln¡nmty,ilæ^suuruocm¡rr*trc.nucvou.tu¡¡owb.måf¡dôfd€llged¡ol|stFlh9n-P.l¡6-'20-.
to thô lollüiûg åddw: .

THIS CONTRAGT TONTAINS PROVISIONS RELATING TO INOEIIINIT'I,
RELEA9E OF Ll,ABlLlTY, At'lD ATLOCATION OF RISK -
SËE PARAGRAFH$ 4,0,6'3(c!' 10,12, ANO 14
lhb Cônt-rct ls ffidà rld ûtsr€d tnb o tle drtc horêrn¡fþr æt hdi bt â¡d belñfi be pstþs haroln dq!¡0Eted sr 'Opâot1' 8rd 'îÆnlrudq.'
OPÊRAÎORl údñ uñlñ|. dll è.- tÞ
Addd!:
Hô6teî,Ì.!rr 7t02: . _ .-
COI¡l¡lACtOR! NÁÈôRSDRILIIIIOUSÂLP ..
AddËr: 5!3W. Odnr Ro$, Suh¡ 1000
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6uêh oþtniot.
1. LoCÀllOt{ OP WÊl¡r
We( Nâm
ðód ìtumb€n
Pârfa$l
CqhVi gb¡s Texag N¡m:
Wsll -
lâ¡d
1,1 Addl0oisl W.ll Loc¡tlon¡ orAF.!i
øta a Propar luNcy g
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lc{ [lß drilíg oa úþ rcll btlùs
ç
CoItfaôt Contlâctot
torm¡nãtes, the
efocl¡on, Sub-paragrâph

t,l lr/ell Oôpür Thr w6ll(.) rhe¡¡ ¡ê tlrfl!{ le ¡ d€pltr ol âpprujmtely 10,q00' Fæt,ç{ql¡€
fetñ€doÈsvÈ¡oås#fcdælø, Ui th6 Colll¡æþr ¡n.[ rct ba requtld huffndc¡ lo drjq ls¡d Ëil(r) bßlw s (stmn depth o¡ l¡ó[ 0nhs3
Cmf¡cþi¡¡dOp.Flømw¡lly¡grdtoddttlgagfüúrdðti. -ìlottos¡c{dcrfåcltynl¡le ¡adÉ¿rlHoolhcrlglnvdiort¡tl*ñ.dlrnln,
1, ÞAYWORXRAfEgT
Contractô¡ ùbrll bo osld !l ltþ lo{lqlng ,slæ ld thô mr¡ æffomad hotundc..
,1,1 t¿loblll¡rttqDr Op€Étor ahâ|, ôfrbiti¡sl,Òslæ4¡ s r ñüli.Étlor dût ñb q{¡ 1s.000.
thls en b! duê ànd hllllêt ¡i r€ted up or 08ll¡snd 6t ÙÊ relì âilq €dy lo ¡pud. Mqbil¡¿ôlm ¡llðl lllr¡u¡Ji.

4.2 ô.@Ulhrl¡ônr Op3ttlü rhël¡ F y CorlEcltr.{æùÍiúSoo.lcq{a'¡ 6 r dwb¡lk¡ìþn day nþ d{d¡*L¡srsß¡t
¡ 19,000' per¿¡y, hffiv.r lòlt rc deñoùl[¿tf6 lêo ¡håll bê pgysbþ ll thò Chlrâct ls tg¡mlmlâd dw lo lìE lolol lN q dtrltudkn
otlhâ dg, Dêtþbillzaüs shall ¡.dude: the
rlg to lh€ noar€st
*Plus âclual costs cÍan0Ð t pcrmits and $4,600 for man-llfl6, Itght towert and stdng down
larulnas
Ue.d¡t1Ráì€gdü.áå{¡fi+ejeå ?ôFa{leHå.|¡"q
Cs¡¡olcG${á4¡ _-
-4J eaF+Hl¡¡ese{}l€u{3ìÞ
a4 Opetadr|g Dry Rrt ¡ fs FÀ pcrfuocd por lvGnt/-lout (?4) tur doy *ilh Ftvo (51 mn cw lhe lpeßüoo dÊy Ete ¡hdl ba:

Drpfh l¡twal¡
Frtr lo Wlthort Drlll Plpt Wû Dfll Pl9t
RIO Rêlêâs! ¡ 2,1,000 pe. óay s__-_11û!9-ætd,y
I dty dâv
t ddl t Fdry
Uô¡ñ0 operâtors drir ptÞo f r¿l¿9gg_. për d!y.

Tho €tô will begtn wtÉn thê drllli¡g unlt i! íûgod op at thå ddflre lóc¡ùs, ü tBil¡arcd ovlr ùe loÈlio¡ dut¡Dg mlìæ N¡!, å^d Hdy lo ønruG opaßôqn!; e.ld stl
æssn ll$n tf8 d0 ¡N r4dy lo bà tþyed od $ô lqüqn-

tuÊ.dWkWá'Pry1) Fm povidod byFom! O4.A.D¡rk
Coñ,n0nÉ2003 lnlmoìirn8¡ ANclsüm ol oílll¡g Conlffi¡ (2J4) 3,{04429 . FomsooÂDick.€m

EXHIBIT ''I-8"
o o
ll unds h. ohgvê 6lùM
,wlúr Driil Pþe' m ðþs ¿ß ôpécjf êd. úrô Ël; ter trMüt.lour ter dry tlm dfill ,ipg ¡r ln {s ahðll b€ ù. applÈablð ota opedlcd ln fia

ÉiumÍ 'W¡thoú Þl( plpô,, p¡s æûpôn.útjon tof sny dr{ll ptto durlly uÐd ¡t lhê nlø rpôdfàd b9¡, ænpuled 6 Úß bààb ol lh€ m¡lnum drlll dp€ ln u$ rl ô¡y
¡ims dlrl¡g êâch lËnv'loü¡ hel dôy'
o'ln prFE pERt¡-r{ouR oAy
"^fE olFg{ln¡lor
gtnlghlHôþ Sle ctú¡ unqorbollrÞ¡e oo{rrd Holç g¡10 Gndt
c__tl[_p*r *"- s " N4 r.,n
¡ N/A pcn. ¡ NIA . ærn
s NIA æ.í ¡ ,. NIA p¡¡tr.

olræt¡ütt Or !næ^ko{|ed dqi¡tod hob Wiü bÊ dæn.d t¡ êXhl vdtrn dÈyjstoñ ù@d. d.l¡dl 4 Y¡hln l¡O chsnge d ¡ôgþ sEed¡

dâgræ! par ore hund€{ tæì,
Orilt plpe êh¡lt be sndéiåd in @ not pnty 9fþn j¡ rctwl us Þul slrô ú116 ll l¡ --
b€lñt plckcd up o.låld dm. WhEn d.lll pìpo 19 rlrndin0 i¡r úa dfllck, il ¡håll nol

b6 €n¡tds.d h !¡d, ptfrided, hffiw, th¿l ll Ciltrætôr lulithtr òpedðl slri¡ls ot ddll plpe, ddll ællrF. ¿[d hlr$lfô! lÐl¡ 13 ,úvit€d lor l^ E ilbil '4", thg sme 3htl
-
bs ñlidered lõ !¡c d sl¡ üm¡ {tìff fi bc¡ti6 q lnlit Eleu¡d by Op.btd, h þ av.¡{ Éhsll fflt¡s¡ olsî haf b€ ænt'dlßd ¡¡ Ç0ñÈUng ìtß ¡mnt ðf 0ru drill

!¡ps ¡¡ 0!€ but !!dt t¡m 6h!ll þe Cmputôd to lhe ns6l hror. wlth lt1¡Íy minut¡s ( ffiô b€lig cNide¡td . lull h00f añd ¡iN lrr¡tr thftl mif,dre nol to bô @dod.
ts

+6 R.p¡tr Tlûo: h lhe.Snt h lr rcry to $r¡t dûrn co¡ltsdo¡r rio tu reprit3, erdudhg fwlæ lh eryldño, cmttEcl4f shâu ba ¡lhwrd
ffipen¡rtio¡.ttheãpÞt¡clblor¡têføut¡Mld6¡nltm?upbrrorlß¡mof ll¡hl18| houÊloranyo¡€ri¡rat€lt¡ob,bljtrottoexæod@!ÈLtiltrligltþls I
olsu.àffipôBrislot!.ry€l€td¡rrc^th lhdê¿RÊr.Chlrådo.sh¡ilueøp¡¡saledrtsrÁleol$------åtgl8l-p€rtwlly-ftur(2'l)touldôy.Rddtßtig I

iwldrg.hall lrldùdô, bvt Nt bt llñllcd lo, cuR¡¡g snd íþpiñ9 dritling lI¡â,.¡rðnflîg pom, s sìecl rxp!ñd¡Us. l¡¡ltn! BOÞ ¡guipûËnl. llff¡ætln€ fig' aod
þmt dr mhrryr¡nc¡. . yvhsr trellt nud ÞûdrÞt rrt-ßûllrd to b. 6od ¡lmdbmourþ, thô tlñlJrmil ch¡n¡lm ddiltúlrh 4m ilr{r .ll|[ not b. I

a.O 3t¡ndby T¡m. R¡tr ¡___¿_-__l ps-hú;ty{d(2{) d¡y. Ståndnr uñ ¡lull Þa dûfi0ld lo lídud! ltu wh$ tho l¡ ¡r dul dM úD{{¡ì ln mdlË |
-t
lo bêlin d ælufr opadlíons !(lf Cóù.Ú ir @ititg 0¡ ordetr of OpGr¡tor or o$ mt¡trls, !ÊNk¡! 6 oltrs it ru þ bo tum¡EtÉd by Opt..q.
,l,t DtllÙng Flqld R.tu! Whe¡ drñllng llqid! ot r typc rnd d16üc|rtutlc lhd íntaÉsô ooîfôqol,¡ @51 ol þdomne h€rcund€r. lnclüd;n!, but nol lhút¡d tô,
oÈ.basd @d ot pot¿id(ñ d¡loiltê, se in rs, Otêrator 3Àtll pay Cñlllrtø ln ¡ddh¡on b thô ot€aâÙñg rde rpedd.d ¡bovo:

(s) t---lo- pa hrn prt dry fo, ConÍæIt's fo-Ete p6ñml. I
lfo
1b) t por dôy sóditþrþl oF?rrlínf rs{el rnd I
{c} Cost ol âll labot, ruhírl ¡nd $M8i þlu! hürr oF€råÙnt t¡l€ lo clen dg ûd Ghl6d ôqui¡môL I
lütll ollhr oprnllng D¡yfflon,y.r*,
d8 torc! ü¡Joud R.t6' r Fa) lo" d¡ttd.nt 6tin@ú p.íod ti.tndrut of¿nüffi rr w¡pq¿¡ qønmt ¡c
---lM!0bElø&lruI- I

dñí.d d dug þ ændillffÈ oa Fo@ ¡rtaþó .s &f¡ed ìn Pa@gr.sh l? h.ræt lt as, hmwr, lndeFtûod th¡( 4t¡€ct to EubÍs€gr¡Þh !.3 ÙÇlor, opgålq
øn relrs¡d tE rlO In a@rl¡nÉ wilh Oprß(ol6 rlght lo d¡úcì ¡lopp¡lr ot thôwrt, ¡fs{iw 6cô @¡dilhdr will Þ¡t¡lüE ri¡ ùc ù¡ ñry€d lm $.lo@llm.
4,9 Rclmbsntbla cótbr opmtd $s¡l re¡ñblru ôont¿cþ, tq ft€ slG ol mtqù|. tqu¡pmt, qdk d ws¡ st¡ìd' ¡E lo br fmithod ¡y ope6t0l 8¡
proyldodtulh6Glnbuuhìûlôf@nwnþnceæatullytunllhedÐCùf¡dorrtOpoûtodgroqmd,plw*--l¡0Jlgl-pdæntffl¡uc1¡soslothridktg.Wltr, I
.t Opgñtü't nquql ând W, ¿aûtador'c agrÉmon1 (hø Conhtl'r leilsùqs .r Súù.aña..ôk aot aruln fiñß ot aøalêôs ||'¡.¡ên OPø(or ta Rgutr.d hñln
to p.ovt.to, lor pw?aer ol tta hdqrlty àîó ô!úçr NavLlon ol t¡1,tt Cøfrrcl sld ltrt¡ or srt cs rlral, úa dMad lo þ. oFñq {wr¡ltrd /lqr¡ ¿r
6.Nt&5. Any êubcgnlncton 6i Nftd shall ba úwød lo la Ora'f¡çb coot¡€clor, úd opú.tat gh.tl to, be ßllç1.ó o( 4ry ôl ltÍ ¡¡obtlld.t ln frat&öú
tùürvlilr, Noarvllhsadnd/þd th¿ lorago[îg Contrt bt sh¿tl nol bc ôbttûcd to pwhts. tny ta.m, at bah.il ol Opñrü, I

4.lo RrvlllonlnRdf¡:'n¡Þril€se[dotpâyreñl6hminsetlorlhdütoConir.clqlMOpcråløihtlù?Hiledbcíetlhoch¡n0ain6¡r¡lltÉ@Gola0y
ol!hélmherairutlorlillÊdrhat¡Erybymor6ûân ætol pøæntfaffithaæstslhôrsf6thsdåtóollhigconhetofbythesmper¡nlqnslhedâleol I
sr? rûvl¡loo gueu.rt !q lhlr gubp¡FgÞphi
(.) L¡bor @!l!, læludin! .ll Þónelf li. ôf cqr¿aols pc¡dndt
ib) CølIqcloi'r cod ol ¡nw6n6 prsduft:
(c) ContEclgr'3ø.tofluel,lndudingolll¡re¡{ndtesllh.æ!tÞor¡61þn¡MCFbehSl t¡rA lOptràtù¡h¡llplöYld..llfu.l.
tdt CohlEdø's @sl oløledno. qhen rpÞli€blo;

{gùf0 U lnil b sny ttr.ñge kr or ngulðtìñ¡ ln the ¡@ in ot othar unloroH0, unu¡!ât éÉnt lùrl slld¡ Cøttrbd{
tlnsndrl bwds,
õ. fltrE ÕF PAYI¡iEU'

Pryænl is due lry OpÊrolqr tq CarlEclq s! lollfi'
ü.1 Pr}lKt lff ffi:l¡¡aim, ddlÈr4 .nd 0ü6r hrk p.lorñÉd el opplisblg ,âl€s. ord Bll ôltEr rppl¡{rblr ú[QÊr ¡h9f bc dre, upoû Fg9ãbdon þl lnvolæ
lh€Eld, upotr @mphdoo of ñdfrl¡on, dômtilt¡ãhi, rig [elûo¡e ar ål tL oìd ot th¿ ú$th h whKñ ¡uci {q* wes pölûrìêd o. olhd c¡¿n¿! aß l¡sQd, tìi.ìry6
fholt ft¡l qur. A¡ ldvolocF náy be Nlted lo Op€rôtd st tha eddegr hcG|mbow rhM, unLæ OpoEþt dæ9 hqÇby de!¡Onólêlhãt auch inwlq dÌslì ba mil€{ g¡
lÒlbw¡:

5.2 Dl¡pltrd lñorcË.nd LrS PaÍm$t Op€r¡to..ñ¡llÞ.y.ll ¡rc¡@! R;ürh lr¡rtv ltoì d¡tt ¡nt re@ipt evÞl lhtt if Opqe lor ditpùt . 5n {nþi@

or êny p.ri thqrool Opcñbr rh.ll. w'¡t¡Ìñ Íieen döyr gnc. r$þt od thr tnvo¡oa, 16
ß¡rm thdeld. !ñd pâyræ.n of thâ
noltt Codhúr ol ûe däput€d, tp6cl.,yno lhg

dbputrd ltm ßy b¡ w{t!¡atd unül ætüemqìt ol lhå dkputÊ. b{t t¡trtr|y pÐrffiô( 3h{ b{ oÞdc ol rny !ñdl:tuled po¡iio¡ A¡y eñ! (¡îclud¡og .msntt ultlmlgly p¡id
Rilhr6lpsdtórd¡lpútdlorcþs¡noipâ¡dúhhtmåbo€sprdfedds'ãrbs¡l¡ø.lnl&ôstrtlherålóol 1ln psæ¡t or thê firúwn h€hl rel.,
wfibh@r b lg!r, per æ¡$ ,rèm thô d@ dôte unltl påid ll Opeñt( dG et páf oilí3M€d llms wfthl¡ lhè abK Etal€d dG, Co¡lr.dû wy $llpeûd oÍaraüm q
bñim(e th¡t Cofìt6cl 4 Ëpêc¡fed !^der SeÞprog¡¡pb 6. 3

6. ÎERMI
õ.1 Oúddoñ ol CoñËcti lhb Coñ16c1 sh.ll r6mrìn lf, tuÍ ldc a¡d sffocl uül dr¡tinq op.rôtio¡¡ rê @mplêlÊd @ hc þll s-€l¡€ s9€clrl.d lf, P¿69@pñ
I¿lÞv0.artorilo{fioa--@ênd¡g onlho d¡lt !þoc[þd ¡n Pâtrgñph2 aborg
¡,1 Ë¡ds¡lñr¡om+€tstlêæy+¡dqodabc.¡sæA!'hçskæl¡F -----------{Í{*}4{.++fÉ{¡C{|-.."...-.,..-
by r¡\,i.râ ndræ lôOert ador 6l l€alt ---------dút€f¡¡0.{a{npL{s{r-$ssL1ùÕ+àalr¡OÈd{€d or+ {ol u¡Þd. ,
---_--
Ê.t Ê¡rlyTcmft¡llon¡
lrl gy Ellhor Prrty: ùpø givlnq ol wdltê¡ ìqnæ, o¡lhsr p.fty my l¡ñ¡ælê lh¡. Cølr¡d ffi lohl los ot doÀhrÇllon ol lhê r¡9, o¡ ¡ djd b@kdM Hh
l0defñìlB Eprlr llmên¡Brh¡le ¡þÞt)¡ng opôeüfr! hgdndcr,

lu.S Uv&cûñd-Pry2)
Cøyrlthl C 2003 l¡lq¡Êli@¡l A5¡d¡tb^ ol Orillinû C6t6ótors ¿ixl"3xf#s :lj,îiËftt-'J[ lo
lb) By
oo
ôp€.rtoi NótÊtth¡ùrndl¡¡ lira ploy¡¡lðÉ ot ?¡nðEph 3 tlth 6Êct ic fþ d6þah to br drilþd, opffðþtr llâll
deplh, snd sve lh0Ù9h cslmctor
ha* lhâ rhñt lo dlËd tñf rtoppoec 0¿ lfte
hâÊ mådt no dôl¡u( htwnd¡l ln sch 4ênl'
fiù/¡'(t^Pd ffi

woft lo bô pellomd Þy cmtrrta. ¡gl€wÉ.r .l Àñy l¡m pdof lo Ésch¡¡g thê ¡pocll'Éd

Opgâ(Éi .h¡ll nimùurs Co¡l¡rdd rt æl b.lh ¡¡l Subp¿rôt€ph I { h8.eol
(c)8ycont6cto.;Notwilh¡hd}{lhoploÌl.lwolP..á!óphsúh'e6pæltoÛFdÉF&lobtó'ilÔd.lntit.ütQpoctùrlulbgdlnldvdt,qbi
adlñtBled ú ban|(Ngr q lile. by My ol Þgtiltor or ðn!w, a drbþr,6 p€Ûllon q ollpr dâãdino r4Ling ôdjstñq¡l ol opemtor'É debt'. ufldtl rny tahklgpEï d dob{Ólr

¡ô lb¡t ¡gatñt opf,êtgr, d h €s r Mlv6r bG rpptlñl€d ol op€Þld q oÞeratols propôrty, ol ány Ðtt üareðl' d
Èñól tåN3 ¡w o, hêr.¡ttrr ptsv.Í¡m. or ¡t âny autù

opdåts,s åfrìrs b€ plaed ¡n lhe no^da of e crcdltó¿t Conn¡tlæ, or. ,olld|hq lhú buCÉtr diyr prir wriltt¡ ñ!i¡Ê to Opã¡tor If Opåàlor dë! lot Þây Canlñdd
ul{lspJltd lt€rs due and fr1n0, Çodod9a trgy, ¡t lt! ôpils, {1) €lê'l to bmln¡te tuft1
p€rlorffiÞ of uy Krt lnds
withln ûæ tfmè ipêcìfêd h SlbpsÉgnth 5.2 åll
In svbpargoEÊh û.4 tt.læí. s (4 s6pèrld ÕtetaÙslg t*{¡ oâyffil ¡s mã(þ by o¡rÉtr
¡¡ vùk ¡
tN. Cñtr¡d Ênd coôlGcþig.hil ùo empeû!¡üø lh0fi be N æl lo¡lh
avqt ùE ltandry trffi Ρte mlâinert lô su@ðÉgßph 4,6 $âü âppu wtll Êaimt ¡E mde ry otdslor lod opemlone åß Ésmed. t¡ tddi,ol tÚ coîlaffil' dîltL

to surpqd ôpeâalonô or tffittnaao ptúotû.ncé ¿Dd3r frút Pl@göp t|, oPRlü h{a6y qlrctgt fgfæt to ø9lccf, lctqd and tfttffinlly coûrrä,gtot lrcm aîd
ôgrtoil¡ aûy cl.¡ms, døtn6. .nd ç.ysæ pt..lloìt r,ratudïng ótl corú¡ of dk,sra tntev ol oqñto', oîfllqb @vffi,@, ergd ed/¡/¡'t ffitÀr t
any o¡hv pttilæ altrítg ltd ôl anf &llllog cofrmtlnaols a' obtlg¿tlafrô Mlrtaod tn Úl lsto' l'nod tgl,tr4' at o'hÚ wl'lch iltf b"lh#
"ffiït'
by suçh ,utpattìøn ol op.ñltòñ u a.ñ¡fr(lü ol PadomqÃc. hqaEda.
6.a Ëttly Ìmln¡flo[ cmFÉdþn:
(61 Pr¡or to comncntffi.nti tn tlË .E¡t Oporl'or tsñ{nârs hlÀ cñltffi Pllor lo ffm¡c¿mént ol oPelgtlor3 hrüqdsr' oparsbr rhÊtl Páy C$lGdt ¡N

lhuidalø dimae6dnd rctá¡ ! PânEltY
tunrp sm ðl l-J!t ¡qq-. I

(b¡ Értor to Str¡ddlng: ll scô l¿qdor[on EUF al\Þr øw|lm¡( of opcntrfia bU ghr b lh3 ôtudd,¡g 0l th9 well, OpeËlø ¡tEl P¡y to Conlfadr ìha ea
ol ¡hêfdlortrE: (t¡ €ltc¡pénær ÞõsmrL{ynnd nlGsadlyloryrrad d# þ bt i¡cur.d ry Cmù8dd rylôM ol lhe Cüfac{¿0d ry Éâfi o?ÚË tromâlulelg0lmlim
ot lhe ffift, todudino lhe flpoM ot dr$I¡g ü ols ffi mmMG ¿ßd ¡ùlsision dkactly oÉrfg*d lo tàs tie; (2¡ ls pe rcsd (10%, ol lhè tmut d s{¡ci relfÍbuftãblB
lptn w'ld Co0lrådq æñffi otly opcølio4t hôÊndq dff to sh dtlr
13) I sum dtcule{d ¡l t}E ¿bMby {iE råh tq llt ürc fph the d¡to
s¡pßnrôs; snd
¡Ut's€q4nttolhódðGolrrniß{úr3wi¡lalodconhðddt€â8m¡bl.l|îÉiôdl6mntþitEngandrquipW¡l@
lh*æ t¿.|¡ ø l9l * P¡l¡c€ 9f tit¡c' O,sþ.-tào¡¡ p¡r'4slrdtrr.]å-€{d¿lh-+¡¡ô{ùo'c-iåèfâF l¡rr*¡o-ßâlô'Jst{"t"sd*ffiLbq'Þefrrhãl4d¡

{¡t sublcqsnt to apûddln9; It rùah lrmh¡lþn @rs .ll.r lhe sFJddidq o! lno Kll oprsbr ôh'll p'v Cont'¿ciot (1} t}é amou¡t lor 3¡l ¡Pplbtblô
ôter lnd el ottFt f¡årlg ¡¡d oimbue|Îfit8 óus !¡ CoñlEcloc btli in ú ffi¡l lhsll ¡udr gm. ê¡doliw of r€lebuffits duê, bg l4! lh3n would luæ
bæ¡ ¿¡mâd lot-.lfltÊ.1ÞL_- ttåy} ð1UÞ lppilsu€ Ele avìthout ôrill Flpô" ond lhe acluãl âñunl dú9 lor dr¡l plpc ùtod lñ a@ldaM wlû tha abcre |
r.tes: q {2} et ih€ óþction al Coðtr|clff rnd ¡n l¡ry of thg lqeedng, ÉÞdEld lh¡¡l pry ôoñtrøtor lor lll orQon6É ßltmbly .[d Hsriv ìmu¡€d â¡ú lo

boÌnd{ôdbyf6!soollh¡sconldl¡ndbyfôâgo'3uc¡prerut(Útefl*€lionpl6,gkæ$n9'¡Æ|
Js-tqr.lm-dtrlhs+ès¡{q-ts-+tqied4r-tihq-êporst+{åË{,îåÉ,SoikÞl&Êl}.¡lúIrû{ñHÙlr{.n¡¡*Oa.lr0fôi¡*S¡¡a |Hy.¡¡{wÌ
I
t ¡d.toæ$¡¡e{r ¡¡.to|r&{Od{rd*lt!asd4ç{ra.taF+ tr l¡dld¡ll,{ düqEÞ üd M ú doltv. ¡ lüññ ¡tn aourl :ô tUr 16l d.ñ d rhó rotrdGd Ìlm R.4- |

?. cAslNG pRttoR lr
Opd¡tor shsff háw üæ rhht to d€tgnâþ ttu Þrtrtó ¡t whlch dtng *ill bê pt ed llþ qamer ot slirtg, cñt¡$ig ánd tÉl/ng OpcñÎo¡ my ûodlly lno
ør¡ôg p.o0dñ. ttrv.r, sny ¡uch modi[øUü wftldr mler¡sty lnde߀ô Cmtú¡odi hå4lds of æsb ø¡ 6ty Þå ñrd€ t4f mulEl cdsnl ol Opsat( and
ConlÉctor and úpæ Egrffim æ l' ó! .ddllloÉlæmpeoelloñ lo b. pafil C6lEd6 at ! Érullllìeræl
8, oRlLLlfG tilEltloo9 AtlÞ PR^CnCã8r
!,,! Contador úhâll mhhln F[ enlrd cquipml ln ooôd ørÈlüq et sí &mr srd 6ñsll u.e .ll l€asmbþ ruanr h Fesl ¡nd mnlrd fGr ¡nd bl$Dut lnd

1o prolêc{ ùo hole,
ônd ¡l Opc6lo¡'r Gl, âr ál¡ ùru¡ dudr{ tbö dllhl oa lh! srll, OperâW $dl hlw lhe tqhl þ mltol ü. mod
t€@l prc!äm,
S.I Eublecl tô thð tðms
rnd th6 dd'thg Íu¡d ¡ tna rrd havc cb¡r¡d¡ristl

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4073762. Public record. Not legal advice.