Preview
Filed: 2/8/2018 6:51 PM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 22407456
By: Shailja Dixit
2/9/2018 8:16 AM
NO. 17-CV-t242
BLANCHARD REFINING COMPANY $ IN THE DISTRICT COURT
LLC and MARATHON PETROLEUM $
COMPANY LP $
$
v $ OF GALVESTON COUNTY, TEXAS
$
$
INDUSTRIAL SPECIALISTS, LLC $ 2I2th JUDICIAL DISTRICT
PLAINTIFFS BLANCHARD REFINING COMPANY LLC AND
MARATHON PETROLEUM COMPANY LP'S MOTION TO COMPEL DISCOVERY
Plaintiffs Blanchard Reñning Company LLC ("Blanchard Refining") and Marathon
Petroleum Company LP ("Marathon Petroleum") (collectively, "Marathon Plaintiffs") file this
Motion to Compel Defendant Industrial Specialists, LLC ("ISI") to respond to Marathon Plaintiffs'
discovery requests and produce responsive documents.
L ISI, on its own say-so, has apparently declared itself exempt from discovery, and
has refused to comply with its discovery obligations in this case, in contravention of the Texas
Rules of Civil Procedure and this Court's rules. ISI purportedly wishes to avoid litigating its
failure to comply with its contractual responsibilities to indemnify Marathon Plaintiffs for losses
incurred when ISI personnel caused a fire at the Galveston Bay Refinery seriously injuring over a
dozen people. The Court should not permit ISI to do so.
2. Marathon Plaintiffs served their Request for Disclosure to ISI along with their
Original Petition on October 9,2017. Pursuant to the Texas Rules of Civil Procedure, ISI was
required to respond within 50 days, by November 28,2017. Tex. R. Civ. P. 193.1, I96.2(a). To
date, ISI has simply refused to respond.
3. In addition, Marathon Plaintiffs served Requests for Production to ISI on October
I0,2017 . As such, ISI was obligated to respond to the requests within 50 days, by November 29,
DB5D6A82C1DD2499: 0001
2017. Tex. R. Civ. P. 193.1, 196.2(a). Again, ISI refused to serve any written responses or
produce a single document.
4. ISI had the opportunity to object to Marathon Plaintiffs' Requests for Production,
yet simply chose not to. Instead, ISI refused to provide any response at all and filed a frivolous
motion for protection more than two weeks after ISI's discovery responses were due. In doing so,
ISI waived its objections to Marathon Plaintiffs' Request for Production. Tex. R. Civ. P. 193.2(e)
("An objection that is not made within the time require...is waived unless the court excuses the
waiver for good cause shown.")
5. Marathon Plaintiffs' discovery requests seek documents and information that are
highly relevant to this case. The indemnity provision at issue provides for ISI to indemnify
Marathon Plaintiffs for losses not attributable to Marathon Plaintiffs' negligence. As such, the
proportionate fault of parties other than Marathon Plaintiffs, i.e.,ISI (designated as a responsible
third party in the underlying suit) and the other third-party contractors (named as defendants in the
underlying suit), in causing the fire and resulting damages is an element of Marathon Plaintiffs'
burden of proof and squarely at issue in this case. Marathon Plaintiffs are entitled to conduct
discovery on that issue and ISI cannot evade its discovery obligations.
6. By way of excuse, ISI has pointed to its motion to dismiss - claiming that because,
in its view, the parties' contractual indemnity agreement does not meet the express negligence
doctrine, ISI owes Marathon Plaintiffs no indemnity duty and, therefore, should be protected from
having to engage in discovery on Marathon Plaintiffs' claims. Of course, Texas law does not
permit aparty to avoid discovery simply because that party filed a motion to dismiss. ISI's position
was meritless while ISI's motion to dismiss was pending, and lacks even more merit now that the
Court has denied the motion to dismiss and refused to hold that Marathon Plaintiffs' claims are
2
DB5D6A82C 1 DD2499: 0O01
barred under the express negligence doctrine. In conference on this motion, ISI's counsel doubled
down on that position, maintaining - despite the Court's ruling - that ISI can still hide behind the
express negligence doctrine.
7. ISI continues to point to Gilbane BIdg. Co. v. Keystone Structural Concrete, Ltd.
to argue that Marathon Plaintiffs should not be permitted "to litigate the question of who caused
[the underlying plaintiffs'] injuries." 263 S.W.3d 291,298 (Tex. App. - Houston [1st Dist.] 2007,
pet. denied). As fully explored in the dispositive motion briefing, the Gilbane court based its
decision on the fact that the indemnity agreement at issue, which contained completely different
language than the provision at issue here, did not meet the requirements of the express negligence
test. Id. ISI made that very same argument in its motion to dismiss, which the Court has now
rejected. ISI cannot offer any legitimate reason why it should be protected from discovery on the
scope of its indemnity obligations under the parties' valid and enforceable agreement.
8. ISI's stonewalling is inexcusable and has already delayed discovery in this case by
over two months. ISI should be compelled to immediately provide written responses to Marathon
Plaintiffs' Request for Disclosure and First Requests for Production and to produce all responsive
documents.
Conclusion
For the foregoing reasons, Marathon Plaintiffs respectfully request that the Court:
o Grant Marathon Plaintiffs' Motion to Compel;
o Order that all of ISI's objections to Marathon Plaintiffs' First Requests for
Production are waived;
a
_)
DB5D6A82C1DD2499: û01
o Order ISI to properly respond to Marathon Plaintiffs' Request for Disclosure and
First Requests for Production and produce all responsive documents within seven
days of the date of the Court's order;
o Order that all costs of production of responsive documents incurred in connection
with ISI's response to Marathon Plaintiffs' First Requests for Production shall be
borne by ISI; and
a Order all other relief to which Marathon Plaintiffs may be justly entitled.
Respectfu lly submitted,
SHIPLEY SNELL MONTGOMERY LLP
By /s/ Joel Z. Montpomery
JoelZ. Montgomery
State Bar No. 24002631
Laina Miller
State Bar No.24Ù37ll4
Z. Alex Rodriguez
State Bar No. 24098339
TI2Main Street, Suite 1400
Houston, Texas 77002
Telephone: (713) 652-5920
Facsimile: (713) 652-3057
jmontgomery @ shipleysnell.com
lmiller@ shipleysnell.com
arodriguez @ shipleysnell.com
ATTORNEYS FOR PLAINTIFFS
BLANCHARD REFINING COMPANY LLC AND
MARATHON PETROLEUM COMPANY LP
4
DB5D6A82C1DD2499: 0001
CERTIFICATE OF CONFERENCE
I hereby certify that on February 7,2018,I conferred by telephone with ISI's counsel, who
confirmed that ISI opposes this motion.
/s/ Joel Z. Montpomery
JoelZ. Montgomery
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing was sent to all counsel of record on February
8, 2018 in accordance with Texas Rules of Civil Procedure 2l and2la:
Ms. Jacqueline Montejano
Holoe¡¡ & MoNre¡,qNo
17l7 Main Street, Suite 5800
Dallas, Texas'75201
Attorneys for Deþndant, Industrial Specialists, LLC
By E.SnNvICE AND/oR E.MAIL
JacquelineMontej ano @ Holdenlitigation. com
/s/ Joel Z. Montpomery
JoelZ. Montgomery
5
DB5D6A82ClDD2499: 0001
Preview
Filed: 2/8/2018 6:51 PM JOHN D. KINARD - District Clerk Galveston County, Texas Envelope No. 22407456 By: Shailja Dixit 2/9/2018 8:16 AM NO. 17-CV-t242 BLANCHARD REFINING COMPANY $ IN THE DISTRICT COURT LLC and MARATHON PETROLEUM $ COMPANY LP $ $ v $ OF GALVESTON COUNTY, TEXAS $ $ INDUSTRIAL SPECIALISTS, LLC $ 2I2th JUDICIAL DISTRICT PLAINTIFFS BLANCHARD REFINING COMPANY LLC AND MARATHON PETROLEUM COMPANY LP'S MOTION TO COMPEL DISCOVERY Plaintiffs Blanchard Reñning Company LLC ("Blanchard Refining") and Marathon Petroleum Company LP ("Marathon Petroleum") (collectively, "Marathon Plaintiffs") file this Motion to Compel Defendant Industrial Specialists, LLC ("ISI") to respond to Marathon Plaintiffs' discovery requests and produce responsive documents. L ISI, on its own say-so, has apparently declared itself exempt from discovery, and has refused to comply with its discovery obligations in this case, in contravention of the Texas Rules of Civil Procedure and this Court's rules. ISI purportedly wishes to avoid litigating its failure to comply with its contractual responsibilities to indemnify Marathon Plaintiffs for losses incurred when ISI personnel caused a fire at the Galveston Bay Refinery seriously injuring over a dozen people. The Court should not permit ISI to do so. 2. Marathon Plaintiffs served their Request for Disclosure to ISI along with their Original Petition on October 9,2017. Pursuant to the Texas Rules of Civil Procedure, ISI was required to respond within 50 days, by November 28,2017. Tex. R. Civ. P. 193.1, I96.2(a). To date, ISI has simply refused to respond. 3. In addition, Marathon Plaintiffs served Requests for Production to ISI on October I0,2017 . As such, ISI was obligated to respond to the requests within 50 days, by November 29, DB5D6A82C1DD2499: 0001 2017. Tex. R. Civ. P. 193.1, 196.2(a). Again, ISI refused to serve any written responses or produce a single document. 4. ISI had the opportunity to object to Marathon Plaintiffs' Requests for Production, yet simply chose not to. Instead, ISI refused to provide any response at all and filed a frivolous motion for protection more than two weeks after ISI's discovery responses were due. In doing so, ISI waived its objections to Marathon Plaintiffs' Request for Production. Tex. R. Civ. P. 193.2(e) ("An objection that is not made within the time require...is waived unless the court excuses the waiver for good cause shown.") 5. Marathon Plaintiffs' discovery requests seek documents and information that are highly relevant to this case. The indemnity provision at issue provides for ISI to indemnify Marathon Plaintiffs for losses not attributable to Marathon Plaintiffs' negligence. As such, the proportionate fault of parties other than Marathon Plaintiffs, i.e.,ISI (designated as a responsible third party in the underlying suit) and the other third-party contractors (named as defendants in the underlying suit), in causing the fire and resulting damages is an element of Marathon Plaintiffs' burden of proof and squarely at issue in this case. Marathon Plaintiffs are entitled to conduct discovery on that issue and ISI cannot evade its discovery obligations. 6. By way of excuse, ISI has pointed to its motion to dismiss - claiming that because, in its view, the parties' contractual indemnity agreement does not meet the express negligence doctrine, ISI owes Marathon Plaintiffs no indemnity duty and, therefore, should be protected from having to engage in discovery on Marathon Plaintiffs' claims. Of course, Texas law does not permit aparty to avoid discovery simply because that party filed a motion to dismiss. ISI's position was meritless while ISI's motion to dismiss was pending, and lacks even more merit now that the Court has denied the motion to dismiss and refused to hold that Marathon Plaintiffs' claims are 2 DB5D6A82C 1 DD2499: 0O01 barred under the express negligence doctrine. In conference on this motion, ISI's counsel doubled down on that position, maintaining - despite the Court's ruling - that ISI can still hide behind the express negligence doctrine. 7. ISI continues to point to Gilbane BIdg. Co. v. Keystone Structural Concrete, Ltd. to argue that Marathon Plaintiffs should not be permitted "to litigate the question of who caused [the underlying plaintiffs'] injuries." 263 S.W.3d 291,298 (Tex. App. - Houston [1st Dist.] 2007, pet. denied). As fully explored in the dispositive motion briefing, the Gilbane court based its decision on the fact that the indemnity agreement at issue, which contained completely different language than the provision at issue here, did not meet the requirements of the express negligence test. Id. ISI made that very same argument in its motion to dismiss, which the Court has now rejected. ISI cannot offer any legitimate reason why it should be protected from discovery on the scope of its indemnity obligations under the parties' valid and enforceable agreement. 8. ISI's stonewalling is inexcusable and has already delayed discovery in this case by over two months. ISI should be compelled to immediately provide written responses to Marathon Plaintiffs' Request for Disclosure and First Requests for Production and to produce all responsive documents. Conclusion For the foregoing reasons, Marathon Plaintiffs respectfully request that the Court: o Grant Marathon Plaintiffs' Motion to Compel; o Order that all of ISI's objections to Marathon Plaintiffs' First Requests for Production are waived; a _) DB5D6A82C1DD2499: û01 o Order ISI to properly respond to Marathon Plaintiffs' Request for Disclosure and First Requests for Production and produce all responsive documents within seven days of the date of the Court's order; o Order that all costs of production of responsive documents incurred in connection with ISI's response to Marathon Plaintiffs' First Requests for Production shall be borne by ISI; and a Order all other relief to which Marathon Plaintiffs may be justly entitled. Respectfu lly submitted, SHIPLEY SNELL MONTGOMERY LLP By /s/ Joel Z. Montpomery JoelZ. Montgomery State Bar No. 24002631 Laina Miller State Bar No.24Ù37ll4 Z. Alex Rodriguez State Bar No. 24098339 TI2Main Street, Suite 1400 Houston, Texas 77002 Telephone: (713) 652-5920 Facsimile: (713) 652-3057 jmontgomery @ shipleysnell.com lmiller@ shipleysnell.com arodriguez @ shipleysnell.com ATTORNEYS FOR PLAINTIFFS BLANCHARD REFINING COMPANY LLC AND MARATHON PETROLEUM COMPANY LP 4 DB5D6A82C1DD2499: 0001 CERTIFICATE OF CONFERENCE I hereby certify that on February 7,2018,I conferred by telephone with ISI's counsel, who confirmed that ISI opposes this motion. /s/ Joel Z. Montpomery JoelZ. Montgomery CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing was sent to all counsel of record on February 8, 2018 in accordance with Texas Rules of Civil Procedure 2l and2la: Ms. Jacqueline Montejano Holoe¡¡ & MoNre¡,qNo 17l7 Main Street, Suite 5800 Dallas, Texas'75201 Attorneys for Deþndant, Industrial Specialists, LLC By E.SnNvICE AND/oR E.MAIL JacquelineMontej ano @ Holdenlitigation. com /s/ Joel Z. Montpomery JoelZ. Montgomery 5 DB5D6A82ClDD2499: 0001