Preview
FILED
9/14/2023 8:43 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Treva Parker-Ayodele DEPUTY
CAUSE NO. DC-22-11298
DALLAS EXCAVATION § IN THE DISTRICT COURT
SYSTEMS, INC., §
§
Plaintiff, §
§
vs. § 192ml JUDICIAL DISTRICT
§
VICTOR ALEXANDER §
ORELLANA, §
§
Defendant. § DALLAS COUNTY, TEXAS
PLAINTIFFS’ REPLY TO DEFENDANTS’ RESPONSE
TO PLAINTIFFS’ MOTION TO STRIKE IURY DEMAND
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW Plaintiffs DALLAS EXCAVATION SYSTEMS, INC.,
ANTONIO CASTREJON and EDUARDO CHAVEZ (”Plaintiffs”) and in
support thereof would respectfully show the Court as follows:
SUMMARY 0F REPLY
1. Defendants argue in their Response to the Plaintiffs’ Motion to
Strike Jury Demand that (a) the Claims the Claims of the Defendants go
beyond the Company Agreement; and (b) their statutory and constitutional
right to a jury trial. Each ground advanced by the Defendants fail for one
of the following reasons: (a) the scope of the arbitration provision covers
PLAINTIFFS’ REPLY TO DEFENDANTS’ RESPONSE
TO PLAINTIFFS’ MOTION TO STRIKE IURY DEMAND - PAGE 1
”..
.any and all disputes, claims, or controversies arising out of or relating to
the [Company] Agreement.” The Defendants’ claims and counterclaims
”arise out of or relate to” the operating of the restaurant located at 2836 N
O’Connor Road, Irving, Texas 75062 (the ” Restaurant”); and (b) Defendants
waived their right to a jury trial in the Company Agreement.
2. Accordingly, Plaintiffs request this Court strike the Defendants’
jury demand based on the claims asserted herein arise out of or are related
to the parties’ Company Agreement and the waiver provision of the
Company Agreement.
AUTHORITIES AND ARGUMENT
3. The scope of the arbitration provision covers ” . . .any and all
disputes, claims, or controversies arising out of or relating to the [Company]
Agreement.” The Defendants’ claims and counterclaims ”arise out of or
relate to” the operating of the restaurant located at 2836 N O’Connor Road,
Irving, Texas 75062 (the ”Restaurant”).1
1
See paragraph 14 of the Plaintiffs Motion to Compel Arbitration and Stay Proceedings
”
citing to the Defendants’ counterclaim stating that . . Counter-defendants [Plaintiffs]
were engaged in a joint venture or joint enterprise and / or agents of one another when
Eduardo Chavez (herein Chavez) and Antonio Castrejon (herein Castrejon) approached
Victor Alexander Orellana (herein Victor Alexander) and Dora Alicia Orellana (herein
Dora Alicia) to operate a restaurant, Rey’s Sports Bar LLC (herein Rey’s), which was
PLAINTIFFS’ REPLY TO DEFENDANTS’ RESPONSE
TO PLAINTIFFS’ MOTION TO STRIKE IURY DEMAND - PAGE 2
4. Under Texas law, a party may contractually waive its right
to ajury trial. See e.g., In re Prudential Ins., 148 S.W.3d 124, 132 (Tex.
2004); In re Bank 0fAm., 278 S.W.3d 342, 344 (Tex.2009). A conspicuous
written provision is prima facie evidence of a knowing and voluntary
waiver and shifts the burden to the opposing party to rebut it. In re
Bank 0f Am, 278 S.W.3d at 343 (quoting In re General Electric, 203
s.w.3d 314, 316 (Tex. 2006)).
”
5. Simply stating a statutory and constitution right” to a jury trial
does not rebut the conspicuous written provision of section 11.6(f) of the
Company Agreement which states:
WAIVER. EACH PARTY HEREBY IRREVOCABLY WAIVES,
TO THE EXTENT PERMITTED BY LAW, ALL RIGHTS TO
TRIAL BY JURY AND ALL RIGHTS TO IMMUNITY BY
SOVEREIGNTY OR OTHERWISE IN ANY ACTION,
PROCEEDING, OR COTINTER-CLAIM (sic) ARISING OUT OF
OR RELATING TO THIS AGREEMENT.
the business owed by Dom Alicia and her partner, Eduardo Calderon. ” Defendants’
Answer and Counterclaim (the ”Counterclaim”), paragraph 2, unnumbered page 2). In
”
paragraph 3 of said Counterclaim, Defendants allege: . . Counter-defendants mislead
Victor Alexander, Dora Alicia and Reys to establish Del Rey’s Sports Bar, LLC, a
restaurant and bar to sell food and alcohol to the public at large under the lease and
lease space held by Dora Alicia and Eduardo Calderon while using a TABC liquor
license assigned to Calderon.”
PLAINTIFFS’ REPLY TO DEFENDANTS’ RESPONSE
TO PLAINTIFFS’ MOTION TO STRIKE IURY DEMAND - PAGE 3
WHEREFORE, PREMISES CONSIDERED, Plaintiffs respectfully
pray that, upon hearing, the Court grant the Plaintiffs’ Motion to Strike Jury
Demand and for such other and further relief as is just and proper.
Respectfully submitted this the 14th day of September, 2023.
SCHEEF & STONE, L.L.P.
2600 Network Boulevard
Suite 400
Frisco, Texas 75034
Telephone: 214.472.2100
Telecopier: 214.472.2150
By: / s/ Patrick I. Schurr
Patrick I. Schurr
State Bar No. 17853530
patrick.schurr@solidcounsel.com
ATTORNEYS FOR THE PLAINTIFFS
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing
document was served on counsel for the Defendant, Michael Martinez, 564
South Coppell Road, Coppell, TX 75019, via electronic mail
mikegmartinezlaw@gmail.com, on this the 14th day of September, 2023.
/ s / Patrick I. Schurr
PLAINTIFFS’ REPLY TO DEFENDANTS’ RESPONSE
TO PLAINTIFFS’ MOTION TO STRIKE IURY DEMAND - PAGE 4
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Patrick Schurr
Bar No. 17853530
patrick.schurr@solidcounsel.com
Envelope ID: 79580241
Filing Code Description: Response
Filing Description: PLAINTIFF REPLY/DEFENDANT
RESPONSE/PLAINTIFF STRIKE JURY DEMAND
Status as of 9/15/2023 11:33 AM CST
Associated Case Party: DALLAS EXCAVATION SYSTEMS, INC.
Name BarNumber Email TimestampSubmitted Status
PATRICK SCHURR PATRICK.SCHURR@SOLIDCOUNSEL.COM 9/14/2023 8:43:58 PM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
MICHAEL MARTINEZ mikegmartinezlaw@gmail.com 9/14/2023 8:43:58 PM SENT
Preview
FILED 9/14/2023 8:43 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Treva Parker-Ayodele DEPUTY CAUSE NO. DC-22-11298 DALLAS EXCAVATION § IN THE DISTRICT COURT SYSTEMS, INC., § § Plaintiff, § § vs. § 192ml JUDICIAL DISTRICT § VICTOR ALEXANDER § ORELLANA, § § Defendant. § DALLAS COUNTY, TEXAS PLAINTIFFS’ REPLY TO DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO STRIKE IURY DEMAND TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW Plaintiffs DALLAS EXCAVATION SYSTEMS, INC., ANTONIO CASTREJON and EDUARDO CHAVEZ (”Plaintiffs”) and in support thereof would respectfully show the Court as follows: SUMMARY 0F REPLY 1. Defendants argue in their Response to the Plaintiffs’ Motion to Strike Jury Demand that (a) the Claims the Claims of the Defendants go beyond the Company Agreement; and (b) their statutory and constitutional right to a jury trial. Each ground advanced by the Defendants fail for one of the following reasons: (a) the scope of the arbitration provision covers PLAINTIFFS’ REPLY TO DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO STRIKE IURY DEMAND - PAGE 1 ”.. .any and all disputes, claims, or controversies arising out of or relating to the [Company] Agreement.” The Defendants’ claims and counterclaims ”arise out of or relate to” the operating of the restaurant located at 2836 N O’Connor Road, Irving, Texas 75062 (the ” Restaurant”); and (b) Defendants waived their right to a jury trial in the Company Agreement. 2. Accordingly, Plaintiffs request this Court strike the Defendants’ jury demand based on the claims asserted herein arise out of or are related to the parties’ Company Agreement and the waiver provision of the Company Agreement. AUTHORITIES AND ARGUMENT 3. The scope of the arbitration provision covers ” . . .any and all disputes, claims, or controversies arising out of or relating to the [Company] Agreement.” The Defendants’ claims and counterclaims ”arise out of or relate to” the operating of the restaurant located at 2836 N O’Connor Road, Irving, Texas 75062 (the ”Restaurant”).1 1 See paragraph 14 of the Plaintiffs Motion to Compel Arbitration and Stay Proceedings ” citing to the Defendants’ counterclaim stating that . . Counter-defendants [Plaintiffs] were engaged in a joint venture or joint enterprise and / or agents of one another when Eduardo Chavez (herein Chavez) and Antonio Castrejon (herein Castrejon) approached Victor Alexander Orellana (herein Victor Alexander) and Dora Alicia Orellana (herein Dora Alicia) to operate a restaurant, Rey’s Sports Bar LLC (herein Rey’s), which was PLAINTIFFS’ REPLY TO DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO STRIKE IURY DEMAND - PAGE 2 4. Under Texas law, a party may contractually waive its right to ajury trial. See e.g., In re Prudential Ins., 148 S.W.3d 124, 132 (Tex. 2004); In re Bank 0fAm., 278 S.W.3d 342, 344 (Tex.2009). A conspicuous written provision is prima facie evidence of a knowing and voluntary waiver and shifts the burden to the opposing party to rebut it. In re Bank 0f Am, 278 S.W.3d at 343 (quoting In re General Electric, 203 s.w.3d 314, 316 (Tex. 2006)). ” 5. Simply stating a statutory and constitution right” to a jury trial does not rebut the conspicuous written provision of section 11.6(f) of the Company Agreement which states: WAIVER. EACH PARTY HEREBY IRREVOCABLY WAIVES, TO THE EXTENT PERMITTED BY LAW, ALL RIGHTS TO TRIAL BY JURY AND ALL RIGHTS TO IMMUNITY BY SOVEREIGNTY OR OTHERWISE IN ANY ACTION, PROCEEDING, OR COTINTER-CLAIM (sic) ARISING OUT OF OR RELATING TO THIS AGREEMENT. the business owed by Dom Alicia and her partner, Eduardo Calderon. ” Defendants’ Answer and Counterclaim (the ”Counterclaim”), paragraph 2, unnumbered page 2). In ” paragraph 3 of said Counterclaim, Defendants allege: . . Counter-defendants mislead Victor Alexander, Dora Alicia and Reys to establish Del Rey’s Sports Bar, LLC, a restaurant and bar to sell food and alcohol to the public at large under the lease and lease space held by Dora Alicia and Eduardo Calderon while using a TABC liquor license assigned to Calderon.” PLAINTIFFS’ REPLY TO DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO STRIKE IURY DEMAND - PAGE 3 WHEREFORE, PREMISES CONSIDERED, Plaintiffs respectfully pray that, upon hearing, the Court grant the Plaintiffs’ Motion to Strike Jury Demand and for such other and further relief as is just and proper. Respectfully submitted this the 14th day of September, 2023. SCHEEF & STONE, L.L.P. 2600 Network Boulevard Suite 400 Frisco, Texas 75034 Telephone: 214.472.2100 Telecopier: 214.472.2150 By: / s/ Patrick I. Schurr Patrick I. Schurr State Bar No. 17853530 patrick.schurr@solidcounsel.com ATTORNEYS FOR THE PLAINTIFFS CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing document was served on counsel for the Defendant, Michael Martinez, 564 South Coppell Road, Coppell, TX 75019, via electronic mail mikegmartinezlaw@gmail.com, on this the 14th day of September, 2023. / s / Patrick I. Schurr PLAINTIFFS’ REPLY TO DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO STRIKE IURY DEMAND - PAGE 4 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Patrick Schurr Bar No. 17853530 patrick.schurr@solidcounsel.com Envelope ID: 79580241 Filing Code Description: Response Filing Description: PLAINTIFF REPLY/DEFENDANT RESPONSE/PLAINTIFF STRIKE JURY DEMAND Status as of 9/15/2023 11:33 AM CST Associated Case Party: DALLAS EXCAVATION SYSTEMS, INC. Name BarNumber Email TimestampSubmitted Status PATRICK SCHURR PATRICK.SCHURR@SOLIDCOUNSEL.COM 9/14/2023 8:43:58 PM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status MICHAEL MARTINEZ mikegmartinezlaw@gmail.com 9/14/2023 8:43:58 PM SENT