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FILED
DALLAS COUNTY
1/25/2019 1:37 PM
FELICIA PITRE
DISTRICT CLERK
Nikita Mosley
NO. DC—18-05978
ASHLEY HOLBERT, Individually and as ) IN THE lOIST DISTRICT COURT
Next Friend of K.H., a Minor and as )
ROWDY LEE
Representative of the Estate of )
HOLBERT, Deceased, and DONNA )
HOLBERT, )
)
Plaintiffs, )
)
And )
)
BIG B CRANE, LLC and INTERNATIONAL )
COMPANY OF HANOVER S.E. )
)
Intervenors, )
)
VS. ) IN AND FOR
)
CRETIC ENERGY SERVICES, LLC; )
CATAPULT ENERGY SERVICES GROUP, )
LLC; NGP CAPITAL MANAGEMENT, LL ; )
and SERVA CORPORATION, )
)
Defendants. ) DALLAS COUNTY, TEXAS
DEFENDANT CRETIC ENERGY SERVICES. LLC, CATAPULT ENERGY
SERVICES GROUP, LLC, and NGP ENERGY CAPITAL MANAGEMENT, LLC’s
BRIEF IN SUPPORT OF ITS MOTION TO TRANSFER VENUE
TO THE HONORABLE COURT:
Come now CRETIC ENERGY SERVICES, LLC, CATAPULT ENERGY SERVICES
GROUP, LLC, and NGP ENERGY CAPITAL MANAGEMENT, LLC (incorrectly named in
Plaintiffs’ Original Petition and First Amended Petition as NGP CAPITAL MANAGEMENT,
LLC), three of the Defendants in the above-entitled and numbered cause, and file this Brief in
Support 0f Defendants’ Motion t0 Transfer Venue of the action filed by Plaintiffs herein to Reagan
County, Texas, a county 0f proper venue, and in support 0f such motion would show the court as
follows:
Defendant’s Brief in Support of its Motion to Transfer Venue Page 1
I. INTRODUCTION
Plaintiffs have not discharged their burden 0f showing that this action Should be
maintained in Dallas County. Indeed, pleadings are not evidence.1 Therefore, Plaintiffs have
offered no prima facie probative evidence in support 0f their assertion that venue is proper, much
less that venue should stay in Dallas County. Accordingly, venue should be transferred to
Reagan County.
II. EVIDENCE IN SUPPORT 0F DEFENDANT’S MOTION T0 TRANSFER VENUE AND
OBJECTIONS T0 PLAINTIFFS’ EXHIBITS
So that the Court is fully informed in deciding venue, Defendants rely upon their Motion
t0 Transfer Venue, First Supplemental Motion to Transfer Venue, and the affidavit attached t0
their First Supplemental Motion t0 Transfer Venue. By this evidence, Which Defendants
expressly incorporate as if set out verbatim herein, Defendants present conclusive evidence that
establishes venue in Reagan County and destroys Plaintiffs’ attempts t0 make a case for venue in
Dallas County.
The following undisputed
III. m
facts establishes that this case bears no relationship with Dallas
County:
1. The accident and all events giving rise to the accident occurred near Big Lake,
Reagan County, Texas, Which is approximately 339 miles from Dallas County,
Texas.
2. Rowdy Holbert was working for Big B Crane, LLC in Reagan County, Texas at
the time of the accident.
3. Intervenor Big B Crane, LLC maintains an office in Garden City, Glasscock
County, Texas. Glasscock County is located immediately north 0f Reagan
County, Texas.
lSee Wood v. Self, 362 S.W.2d 188, 191 (TeX. App. — Dallas 1962, n0 writ) (“Pleadings, including sworn
pleadings, are hearsay”).
Defendant’s Brief in Support of its Motion t0 Transfer Venue Page 2
4. Defendant Cretic maintains offices in Midland County, Which is adjacent to
Reagan County, Texas.
5. The well site Where the accident occurred is approximately 1/4 mile from Big
Lake, Texas Which is located in Reagan County, Texas.
6. A11 first responders, the investigating officers, and other such anticipated
Witnesses in this case are located in or near Reagan County, Texas.
7. A11 investigations, inspections, 0r accident reconstructions occurred 0r will
necessarily occur in Reagan County, Texas.
8. A11 necessary Witnesses are subject to compulsory attendance by subpoena if this
case were pending Reagan County; however, such witnesses are not subject
in t0
compulsory attendance by subpoena if the case remains in Dallas County?
9. Nothing related t0 this accident, nor the prosecution 0f this case, is in any way
related t0 Dallas County, Texas.
In short, Dallas County is not a county 0f proper venue, and even if this Court disagrees, the
interests ofjustice strongly demand that the case be transferred t0 Reagan County — the situs 0f
the events, the location of all evidence, and the residence of nearly all Witnesses.3
IV. ARGUMENT AND AUTHORITIES
Plaintiffs have filed this case in Dallas County, Texas, an improper county 0f venue, 0r
alternatively, if a proper county, not a county of convenient venue for the parties. This case
should have been filed in Reagan County — the county Where all events giving rise to this suit
occurred as is set forth above. The case should be transferred based upon the following grounds:
1. Dallas County has not been shown t0 be a county of proper venue;
2. N0 mandatory venue provision is applicable;
zSee TEX. R. CIV. P. 176.3 (stating that subpoenas are limited by range to a 150 mile radius).
3See TEX. CIV. PRAC. & REM. CODE § 15.002(a)(1), (2) (providing that venue is proper where the events
giving rise to the claim occurred 0r in the county 0f the defendant’s residence When the cause 0f action accrued).
Defendant’s Brief in Support of its Motion t0 Transfer Venue Page 3
3. The general rule of venue set forth in §15.002(a) 0f Texas Civil Practice and
Remedies Code is applicable per the facts set forth above; and
4. Alternative §15.002(b)(c) of Texas Civil Practice and Remedies Code are
applicable because without question Reagan County is the county of convenience
for all parties and Where this case should be transferred in the interest ofjustice.
A. Venue is notproper in Dallas County
When, as here, a defendant objects t0 the plaintiff s venue choice and properly challenges
that choice through a motion t0 transfer venue, the issue of proper venue is raised.4 The burden
then shifts to the plaintiff t0 prove that venue is maintainable in the county of suits If the
plaintiff fails t0 meet this burden, the trial court must transfer the lawsuit t0 another specified
6
county of proper venue. T0 discharge his burden, the plaintiff must present prima facie proof
through probative evidence that his choice 0f venue is proper.7 When he does not, the right t0
choose proper venue passes to Defendantg The same rules apply when a defendant challenges
the plaintiff’s joinder 0f a party for purposes 0f establishing venue.9
Here, as set out above, Defendant specifically denied Plaintiffs’ venue facts and
challenged Whether Defendant NGP was a proper party and properly joined. Accordingly, the
4See TEX. R. CIV. P. 86; see also Wilson v. Tex. Parks & Wildlife Dep ’t, 886 S.W.2d 259, 260 (Tex. 1994).
5See TEX. R. CIV. P. at 87-2(a).
éSee TEX. R. CIV. P. 86; see also Wilson, 886 S.W.2d at 260.
7See TEX. R. CIV. P. 87-3(c); Wilson, 886 S.W.2d at 262.
SSee Ford Motor C0. v. Johnson, 473 S.W.3d 925, 928 (Tex. App.
— Dallas 2015, pet. denied) (“. if the . .
plaintiff fails to discharge its burden [of presenting prima facie proof],the right t0 choose a proper venue passes to
the defendant. . .”).
9See Acker v. Denton Publ'g C0., 937 S.W.2d 111, 117 (Tex. App.—Fort Worth 1996, no writ); Garza v.
State & Cly. Mut. Fire Ins. C0., No. 2-06-202-CV, 2007 Tex. App. LEXIS 3070, 2007 WL 1168468, at *3 (Tex.
App.—Fort Worth Apr. 19, 2007, pet. denied).
Defendant’s Brief in Support of its Motion t0 Transfer Venue Page 4
burden switched to Plaintiffs to bring forth prima facie proof with admissible probative evidence
to maintain venue in Dallas County and that Defendant NGP was a proper party.” But not only
have Plaintiffs failed to attach admissible probative evidence establishing prima facie proof 0f
venue in Dallas County, they have Wholly failed to even respond as t0 Whether Defendant NGP
was properly joined. Accordingly, Plaintiffs have failed to discharge their burden, and the right
to choose proper venue passes t0 Defendants.“
As such, venue (as established by the sworn, probative and admissible evidence) proves
that Reagan County is the county of proper venue. Indeed, the accident occurred in Reagan
County. Moreover, Rowdy Lee Holbert was working for Big B Crane, LLC in Reagan County,
Texas at the time of the accident. Big B Crane, LLC maintains an office in Garden City,
Glasscock County, Texas. Glasscock County is located immediately north of Reagan County,
Texas. Further, Defendant Cretic maintains its offices in Midland County, Texas, which is
adjacent t0 Reagan County, and all investigating officers work in Reagan County. In short,
Plaintiffs have made n0 showing that venue is proper in Dallas County, nor have Plaintiffs
presented sworn prima facie proof that Defendant NGP has been properly joined to this action;
rather, Plaintiffs merely assert so in their pleadings. But again, Plaintiffs’ pleadings are not
evidence.” Because Defendants deny proper venue and the joinder 0f NGP, the burden switched
”See Acker v. Denton Publ’g C0., 937 S.W.2d 111, 117 (Tex. App.—Fort Worth 1996, no writ); Garza v.
State & Cty. Mut. Fire N0. 2-06-202-CV, 2007 Tex. App. LEXIS 3070, 2007 WL 1168468, at *3 (TeX.
Ins. C0.,
App.—Fort Worth Apr. 19, 2007, pet. denied)
“See Ford Motor C0. v. Johnson, 473 S.W.3d 925, 928 (TeX. App. — Dallas 2015, pet. denied) (“. if the . .
plaintiff fails to discharge its burden [of presenting prima facie proof],the right t0 choose a proper venue passes to
the defendant .”); see also Blalock Prescription Ctr., Inc. v. Lopez-Guerra, 986 S.W.2d 658, 664 (TeX. App. —
. .
Corpus Christi 1998, no pet.) (finding conclusory affidavits with speculation concerning what the plaintiffs will
show “are, without supporting facts, nothing more than restatements 0f appellees’ pleadings, Which were specifically
denied,” making the joinder improper).
”See Wood v. Self, 362 S.W.2d 188, 191 (TeX. App. — Dallas 1962, n0 writ) (“Pleadings, including sworn
pleadings, are hearsay”).
Defendant’s Brief in Support of its Motion t0 Transfer Venue Page 5
to Plaintiffs to produce prima facie probative evidence in support of their pleadings. They did
not d0 so. Accordingly, absent such probative evidence, Plaintiffs have not proved that Dallas
County is a county of proper venue or that Defendant NGP is a properly joined party. Therefore,
this case should be transferred t0 Reagan County, Texas, a county of proper venue.
B. Transferfor Forum Nonconveniens is Proper
In the alternative (and without conceding Dallas County is a county of proper venue), this
case should be transferred t0 Reagan County for the convenience 0f the parties and Witnesses,
and in the interest ofjustice. Section 15.002(b) of the Texas Civil Practices and Remedies Code
provides for the transfer 0f venue to a county of proper venue when (1) maintenance of the
action in the county 0f suit would work an injustice t0 the movant; (2) the balance of interests for
all parties predominates in favor 0f transfer; and (3) the transfer would not work an injustice t0
any other party.” Notably, a court’s decision t0 transfer under Section 15.002(b) cannot be
reversed by mandamus or on appeal.”
1. Hardship 0n Movant
Whether the movant would suffer an economic and personal hardship is the first factor.”
Litigating in Dallas County, Texas would impose a significant burden 0n Cretic. Cretic has no
contacts with Dallas County, Texas. Cretic has no offices in Dallas County, Texas. Cretic’s
main office is in Midland County, Texas, which is located approximately 346 miles (or 5 hours
by car) — according to Google maps — from the Dallas County Courthouse. It would be costly for
”See TEX. CIV. PRAC. & REM. CODE § 15.002(b).
”See TEX. CIV. PRAC. & REM. CODE § 15.002(0); see also Trend Ofifvet Printing Servs., Inc. v. Collin
County ley. College Dist, 249 S.W.3d 429, 430 (Tex. 2008) (per curiam); Garza v. Garcia, 137 S.W.3d 36, 39
(Tex. 2004) (cases noting the effect 0f section 15.002(c) is to preclude any appellate review of an order transferring
venue under section 15.002(b)).
”See TEX. CIV. PRAC. & REM. CODE § 15.002(b)(1).
Defendant’s Brief in Support of its Motion t0 Transfer Venue Page 6
Cretic and its attorneys to travel t0 Dallas, Texas t0 litigate this suit. Defendants would have t0
spend money 0n gas, hotels and possible airfare. Undoubtedly, litigating this case in Dallas
County would cause Defendant t0 suffer a significant economic and personal hardship.
Therefore, the first factor weighs in favor of transfer.
2. Balance 0f Interests Favors Transfer
The second factor looks to whether the balance of interests favor transfer t0 Reagan
County.” It does. The accident occurred in Reagan County. Furthermore, most, if not all,
necessary deponents are within the 150 mile compulsory attendance subpoena range of Reagan
County —local sheriffs’ deputies that aided in the investigation, local paramedics and firefighters
that went t0 the scene. The medical examiner that performed the autopsy is located in Lubbock
County, Texas, Which is 182 miles from Reagan County, Texas and 319 miles from Dallas
County, Texas. N0 witnesses reside in Dallas County, Texas, other than executives of Defendant
NGP. Defendant Cretic maintains an office in Midland County, which is adjacent t0 Reagan
County. Big B Crane, LLC maintains an office in Garden City, Glasscock County, Texas.
Glasscock County is located immediately north of Reagan County, Texas. Therefore, given the
number 0f necessary Witnesses located Within 150 miles of Reagan County, Texas, and the lack
of any necessary witnesses in Dallas County, the balance of interests favor transfer to Reagan
County.
Moreover, other factors to consider include court congestion, burdening the people 0f a
community with jury duty When they have no relation to the litigation, and the local interest in
”See In re GE, 271 S.W.3d 681, 691 (Tex. 2008) (noting that in the state-nonresident forum nonconviens
analysis, “the private interest considerations generally are considered to be the ease of access t0 proof, the
availability and cost of compulsory process, the possibility of Viewing the premises, if appropriate, and other
practical problems that make trial easy, expeditious, and inexpensive”) (citations omitted).
Defendant’s Brief in Support of its Motion t0 Transfer Venue Page 7
having localized controversies decided at home.” Here, it is undisputed that the accident
occurred in Reagan County, and there is n0 evidence that Dallas County jurors have any relation
to the litigation. Simply, this case should be decided in Reagan County. Thus, the second factor
weighs in favor 0f transfer.
3. N0 Injustice 0n Plaintiffs
The proper consideration is increased travel time, the availability of Witnesses, and
Whether there is compulsory process t0 secure the attendance of Witnesses.“ Plaintiffs have
presented no evidence that the costs of litigating in Reagan County will not significantly differ
from the cost 0f litigating over 339 miles away in Dallas County. Finally, as already discussed
above, it is uncontested that most, if not all, necessary Witnesses are within the compulsory
process range such that their attendance can be secured for depositions and at trial in Reagan
County.” In short, the transfer Will not work an injustice 0n Plaintiffs.” Therefore, the final
factor weighs in favor 0f transfer.
4. Summary
In sum, the doctrine 0f forum non conveniens is intended t0 prevent the imposition 0f an
inconvenient jurisdiction 0n a litigant When the interests at issue warrant a different forum.” A11
of the factors considered here weigh in favor 0f transfer. The accident occurred in Reagan
County, Defendant Cretic maintains an office in the adjacent county, Intervenor Big B Crane,
”See, e.g., In re GE, 271 S.W.3d at 691 (setting out considerations for state-nonresident forum
nonconviens analysis).
“See Liberty Mut. Ins. C0. v. Transit Mix Concrete & Materials C0., No. 06-12-00117-CV, 2013 TeX.
App. LEXIS 7978, *32 (Tex. App. — Texarkana June 28, 2013, pet. denied) (mem. op)) (setting out state-nonresident
forum nonconveniens analysis) (citing Ensco Offshore Int’l C0,, 311 S.W.3d at 925 and In re GE, 271 S.W.3d at
689).
”See TEX. R. CIV. P. 176.3 (noting subpoena range of 150 miles).
”See Liberty Mm, 2013 Tex. App. LEXIS 7978 at *32 (holding n0 injustice When counties were adjacent,
witnesses were Within subpoena range, and costs would not be significantly different).
Defendant’s Brief in Support of its Motion t0 Transfer Venue Page 8
LLC maintains an office in the adjacent county, and most, if not all, parties and necessary
Witnesses are there or within compulsory attendance by subpoena range. The transfer 0f this suit
would not work an injustice t0 any party, and the balance 0f interest 0f all the parties
predominates in favor of transfer to Reagan County. Accordingly, Defendants request that the
case be transferred to Reagan County, a more convenient forum.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Defendants pray that Defendants’ Motion
to Transfer Venue be granted, that this Court transfer this case to Reagan County, and for such
other and filrther relief t0 which they may be justly entitled.
Respectfully submitted,
PETERSON FARRIS BYRD & PARKER
A Professional Corporation
P. O. Box 9620
Amarillo, TX 79105-9620
(806) 374-53 17; FAX: 372-2107
cparkerngf—lawfirmsom
Chris D. Parker; SB#1 5479 1 00
A TTORNE YS FOR DEFENDANTS
”See Yoroshii Invs. (Mauritius) PTE. Ltd. v. BP Int’l Ltd, 179 S.W.3d 639, 643 (Tex. App. — E1 Paso 2005,
pet. denied).
Defendant’s Brief in Support of its Motion t0 Transfer Venue Page 9
CERTIFICATE OF SERVICE
I hereby certify that on this 25th day 0f January, 2019, I electronically filed the foregoing
document with the Clerk 0f the above-named court, using the electronic case filing system 0f the
court. Pursuant t0 Rule 21a of the Texas Rules of Civil Procedure, the following attorneys of
record were served electronically:
Charles M. Noteboom
Brian W. Butcher
Noteboom Law Firm
669 Airport Freeway, Suite 100
Hurst, TX 76053
butcher@noteboom.com
John Holman Barr
Burt Barr & Associates
P.O. Box 223667
Dallas, TX 75222
jbarr@bbarr.com
fi/fi
Chris D. Parker
Defendant’s Brief in Support of its Motion t0 Transfer Venue Page 10
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FILED DALLAS COUNTY 1/25/2019 1:37 PM FELICIA PITRE DISTRICT CLERK Nikita Mosley NO. DC—18-05978 ASHLEY HOLBERT, Individually and as ) IN THE lOIST DISTRICT COURT Next Friend of K.H., a Minor and as ) ROWDY LEE Representative of the Estate of ) HOLBERT, Deceased, and DONNA ) HOLBERT, ) ) Plaintiffs, ) ) And ) ) BIG B CRANE, LLC and INTERNATIONAL ) COMPANY OF HANOVER S.E. ) ) Intervenors, ) ) VS. ) IN AND FOR ) CRETIC ENERGY SERVICES, LLC; ) CATAPULT ENERGY SERVICES GROUP, ) LLC; NGP CAPITAL MANAGEMENT, LL ; ) and SERVA CORPORATION, ) ) Defendants. ) DALLAS COUNTY, TEXAS DEFENDANT CRETIC ENERGY SERVICES. LLC, CATAPULT ENERGY SERVICES GROUP, LLC, and NGP ENERGY CAPITAL MANAGEMENT, LLC’s BRIEF IN SUPPORT OF ITS MOTION TO TRANSFER VENUE TO THE HONORABLE COURT: Come now CRETIC ENERGY SERVICES, LLC, CATAPULT ENERGY SERVICES GROUP, LLC, and NGP ENERGY CAPITAL MANAGEMENT, LLC (incorrectly named in Plaintiffs’ Original Petition and First Amended Petition as NGP CAPITAL MANAGEMENT, LLC), three of the Defendants in the above-entitled and numbered cause, and file this Brief in Support 0f Defendants’ Motion t0 Transfer Venue of the action filed by Plaintiffs herein to Reagan County, Texas, a county 0f proper venue, and in support 0f such motion would show the court as follows: Defendant’s Brief in Support of its Motion to Transfer Venue Page 1 I. INTRODUCTION Plaintiffs have not discharged their burden 0f showing that this action Should be maintained in Dallas County. Indeed, pleadings are not evidence.1 Therefore, Plaintiffs have offered no prima facie probative evidence in support 0f their assertion that venue is proper, much less that venue should stay in Dallas County. Accordingly, venue should be transferred to Reagan County. II. EVIDENCE IN SUPPORT 0F DEFENDANT’S MOTION T0 TRANSFER VENUE AND OBJECTIONS T0 PLAINTIFFS’ EXHIBITS So that the Court is fully informed in deciding venue, Defendants rely upon their Motion t0 Transfer Venue, First Supplemental Motion to Transfer Venue, and the affidavit attached t0 their First Supplemental Motion t0 Transfer Venue. By this evidence, Which Defendants expressly incorporate as if set out verbatim herein, Defendants present conclusive evidence that establishes venue in Reagan County and destroys Plaintiffs’ attempts t0 make a case for venue in Dallas County. The following undisputed III. m facts establishes that this case bears no relationship with Dallas County: 1. The accident and all events giving rise to the accident occurred near Big Lake, Reagan County, Texas, Which is approximately 339 miles from Dallas County, Texas. 2. Rowdy Holbert was working for Big B Crane, LLC in Reagan County, Texas at the time of the accident. 3. Intervenor Big B Crane, LLC maintains an office in Garden City, Glasscock County, Texas. Glasscock County is located immediately north 0f Reagan County, Texas. lSee Wood v. Self, 362 S.W.2d 188, 191 (TeX. App. — Dallas 1962, n0 writ) (“Pleadings, including sworn pleadings, are hearsay”). Defendant’s Brief in Support of its Motion t0 Transfer Venue Page 2 4. Defendant Cretic maintains offices in Midland County, Which is adjacent to Reagan County, Texas. 5. The well site Where the accident occurred is approximately 1/4 mile from Big Lake, Texas Which is located in Reagan County, Texas. 6. A11 first responders, the investigating officers, and other such anticipated Witnesses in this case are located in or near Reagan County, Texas. 7. A11 investigations, inspections, 0r accident reconstructions occurred 0r will necessarily occur in Reagan County, Texas. 8. A11 necessary Witnesses are subject to compulsory attendance by subpoena if this case were pending Reagan County; however, such witnesses are not subject in t0 compulsory attendance by subpoena if the case remains in Dallas County? 9. Nothing related t0 this accident, nor the prosecution 0f this case, is in any way related t0 Dallas County, Texas. In short, Dallas County is not a county 0f proper venue, and even if this Court disagrees, the interests ofjustice strongly demand that the case be transferred t0 Reagan County — the situs 0f the events, the location of all evidence, and the residence of nearly all Witnesses.3 IV. ARGUMENT AND AUTHORITIES Plaintiffs have filed this case in Dallas County, Texas, an improper county 0f venue, 0r alternatively, if a proper county, not a county of convenient venue for the parties. This case should have been filed in Reagan County — the county Where all events giving rise to this suit occurred as is set forth above. The case should be transferred based upon the following grounds: 1. Dallas County has not been shown t0 be a county of proper venue; 2. N0 mandatory venue provision is applicable; zSee TEX. R. CIV. P. 176.3 (stating that subpoenas are limited by range to a 150 mile radius). 3See TEX. CIV. PRAC. & REM. CODE § 15.002(a)(1), (2) (providing that venue is proper where the events giving rise to the claim occurred 0r in the county 0f the defendant’s residence When the cause 0f action accrued). Defendant’s Brief in Support of its Motion t0 Transfer Venue Page 3 3. The general rule of venue set forth in §15.002(a) 0f Texas Civil Practice and Remedies Code is applicable per the facts set forth above; and 4. Alternative §15.002(b)(c) of Texas Civil Practice and Remedies Code are applicable because without question Reagan County is the county of convenience for all parties and Where this case should be transferred in the interest ofjustice. A. Venue is notproper in Dallas County When, as here, a defendant objects t0 the plaintiff s venue choice and properly challenges that choice through a motion t0 transfer venue, the issue of proper venue is raised.4 The burden then shifts to the plaintiff t0 prove that venue is maintainable in the county of suits If the plaintiff fails t0 meet this burden, the trial court must transfer the lawsuit t0 another specified 6 county of proper venue. T0 discharge his burden, the plaintiff must present prima facie proof through probative evidence that his choice 0f venue is proper.7 When he does not, the right t0 choose proper venue passes to Defendantg The same rules apply when a defendant challenges the plaintiff’s joinder 0f a party for purposes 0f establishing venue.9 Here, as set out above, Defendant specifically denied Plaintiffs’ venue facts and challenged Whether Defendant NGP was a proper party and properly joined. Accordingly, the 4See TEX. R. CIV. P. 86; see also Wilson v. Tex. Parks & Wildlife Dep ’t, 886 S.W.2d 259, 260 (Tex. 1994). 5See TEX. R. CIV. P. at 87-2(a). éSee TEX. R. CIV. P. 86; see also Wilson, 886 S.W.2d at 260. 7See TEX. R. CIV. P. 87-3(c); Wilson, 886 S.W.2d at 262. SSee Ford Motor C0. v. Johnson, 473 S.W.3d 925, 928 (Tex. App. — Dallas 2015, pet. denied) (“. if the . . plaintiff fails to discharge its burden [of presenting prima facie proof],the right t0 choose a proper venue passes to the defendant. . .”). 9See Acker v. Denton Publ'g C0., 937 S.W.2d 111, 117 (Tex. App.—Fort Worth 1996, no writ); Garza v. State & Cly. Mut. Fire Ins. C0., No. 2-06-202-CV, 2007 Tex. App. LEXIS 3070, 2007 WL 1168468, at *3 (Tex. App.—Fort Worth Apr. 19, 2007, pet. denied). Defendant’s Brief in Support of its Motion t0 Transfer Venue Page 4 burden switched to Plaintiffs to bring forth prima facie proof with admissible probative evidence to maintain venue in Dallas County and that Defendant NGP was a proper party.” But not only have Plaintiffs failed to attach admissible probative evidence establishing prima facie proof 0f venue in Dallas County, they have Wholly failed to even respond as t0 Whether Defendant NGP was properly joined. Accordingly, Plaintiffs have failed to discharge their burden, and the right to choose proper venue passes t0 Defendants.“ As such, venue (as established by the sworn, probative and admissible evidence) proves that Reagan County is the county of proper venue. Indeed, the accident occurred in Reagan County. Moreover, Rowdy Lee Holbert was working for Big B Crane, LLC in Reagan County, Texas at the time of the accident. Big B Crane, LLC maintains an office in Garden City, Glasscock County, Texas. Glasscock County is located immediately north of Reagan County, Texas. Further, Defendant Cretic maintains its offices in Midland County, Texas, which is adjacent t0 Reagan County, and all investigating officers work in Reagan County. In short, Plaintiffs have made n0 showing that venue is proper in Dallas County, nor have Plaintiffs presented sworn prima facie proof that Defendant NGP has been properly joined to this action; rather, Plaintiffs merely assert so in their pleadings. But again, Plaintiffs’ pleadings are not evidence.” Because Defendants deny proper venue and the joinder 0f NGP, the burden switched ”See Acker v. Denton Publ’g C0., 937 S.W.2d 111, 117 (Tex. App.—Fort Worth 1996, no writ); Garza v. State & Cty. Mut. Fire N0. 2-06-202-CV, 2007 Tex. App. LEXIS 3070, 2007 WL 1168468, at *3 (TeX. Ins. C0., App.—Fort Worth Apr. 19, 2007, pet. denied) “See Ford Motor C0. v. Johnson, 473 S.W.3d 925, 928 (TeX. App. — Dallas 2015, pet. denied) (“. if the . . plaintiff fails to discharge its burden [of presenting prima facie proof],the right t0 choose a proper venue passes to the defendant .”); see also Blalock Prescription Ctr., Inc. v. Lopez-Guerra, 986 S.W.2d 658, 664 (TeX. App. — . . Corpus Christi 1998, no pet.) (finding conclusory affidavits with speculation concerning what the plaintiffs will show “are, without supporting facts, nothing more than restatements 0f appellees’ pleadings, Which were specifically denied,” making the joinder improper). ”See Wood v. Self, 362 S.W.2d 188, 191 (TeX. App. — Dallas 1962, n0 writ) (“Pleadings, including sworn pleadings, are hearsay”). Defendant’s Brief in Support of its Motion t0 Transfer Venue Page 5 to Plaintiffs to produce prima facie probative evidence in support of their pleadings. They did not d0 so. Accordingly, absent such probative evidence, Plaintiffs have not proved that Dallas County is a county of proper venue or that Defendant NGP is a properly joined party. Therefore, this case should be transferred t0 Reagan County, Texas, a county of proper venue. B. Transferfor Forum Nonconveniens is Proper In the alternative (and without conceding Dallas County is a county of proper venue), this case should be transferred t0 Reagan County for the convenience 0f the parties and Witnesses, and in the interest ofjustice. Section 15.002(b) of the Texas Civil Practices and Remedies Code provides for the transfer 0f venue to a county of proper venue when (1) maintenance of the action in the county 0f suit would work an injustice t0 the movant; (2) the balance of interests for all parties predominates in favor 0f transfer; and (3) the transfer would not work an injustice t0 any other party.” Notably, a court’s decision t0 transfer under Section 15.002(b) cannot be reversed by mandamus or on appeal.” 1. Hardship 0n Movant Whether the movant would suffer an economic and personal hardship is the first factor.” Litigating in Dallas County, Texas would impose a significant burden 0n Cretic. Cretic has no contacts with Dallas County, Texas. Cretic has no offices in Dallas County, Texas. Cretic’s main office is in Midland County, Texas, which is located approximately 346 miles (or 5 hours by car) — according to Google maps — from the Dallas County Courthouse. It would be costly for ”See TEX. CIV. PRAC. & REM. CODE § 15.002(b). ”See TEX. CIV. PRAC. & REM. CODE § 15.002(0); see also Trend Ofifvet Printing Servs., Inc. v. Collin County ley. College Dist, 249 S.W.3d 429, 430 (Tex. 2008) (per curiam); Garza v. Garcia, 137 S.W.3d 36, 39 (Tex. 2004) (cases noting the effect 0f section 15.002(c) is to preclude any appellate review of an order transferring venue under section 15.002(b)). ”See TEX. CIV. PRAC. & REM. CODE § 15.002(b)(1). Defendant’s Brief in Support of its Motion t0 Transfer Venue Page 6 Cretic and its attorneys to travel t0 Dallas, Texas t0 litigate this suit. Defendants would have t0 spend money 0n gas, hotels and possible airfare. Undoubtedly, litigating this case in Dallas County would cause Defendant t0 suffer a significant economic and personal hardship. Therefore, the first factor weighs in favor of transfer. 2. Balance 0f Interests Favors Transfer The second factor looks to whether the balance of interests favor transfer t0 Reagan County.” It does. The accident occurred in Reagan County. Furthermore, most, if not all, necessary deponents are within the 150 mile compulsory attendance subpoena range of Reagan County —local sheriffs’ deputies that aided in the investigation, local paramedics and firefighters that went t0 the scene. The medical examiner that performed the autopsy is located in Lubbock County, Texas, Which is 182 miles from Reagan County, Texas and 319 miles from Dallas County, Texas. N0 witnesses reside in Dallas County, Texas, other than executives of Defendant NGP. Defendant Cretic maintains an office in Midland County, which is adjacent t0 Reagan County. Big B Crane, LLC maintains an office in Garden City, Glasscock County, Texas. Glasscock County is located immediately north of Reagan County, Texas. Therefore, given the number 0f necessary Witnesses located Within 150 miles of Reagan County, Texas, and the lack of any necessary witnesses in Dallas County, the balance of interests favor transfer to Reagan County. Moreover, other factors to consider include court congestion, burdening the people 0f a community with jury duty When they have no relation to the litigation, and the local interest in ”See In re GE, 271 S.W.3d 681, 691 (Tex. 2008) (noting that in the state-nonresident forum nonconviens analysis, “the private interest considerations generally are considered to be the ease of access t0 proof, the availability and cost of compulsory process, the possibility of Viewing the premises, if appropriate, and other practical problems that make trial easy, expeditious, and inexpensive”) (citations omitted). Defendant’s Brief in Support of its Motion t0 Transfer Venue Page 7 having localized controversies decided at home.” Here, it is undisputed that the accident occurred in Reagan County, and there is n0 evidence that Dallas County jurors have any relation to the litigation. Simply, this case should be decided in Reagan County. Thus, the second factor weighs in favor 0f transfer. 3. N0 Injustice 0n Plaintiffs The proper consideration is increased travel time, the availability of Witnesses, and Whether there is compulsory process t0 secure the attendance of Witnesses.“ Plaintiffs have presented no evidence that the costs of litigating in Reagan County will not significantly differ from the cost 0f litigating over 339 miles away in Dallas County. Finally, as already discussed above, it is uncontested that most, if not all, necessary Witnesses are within the compulsory process range such that their attendance can be secured for depositions and at trial in Reagan County.” In short, the transfer Will not work an injustice 0n Plaintiffs.” Therefore, the final factor weighs in favor 0f transfer. 4. Summary In sum, the doctrine 0f forum non conveniens is intended t0 prevent the imposition 0f an inconvenient jurisdiction 0n a litigant When the interests at issue warrant a different forum.” A11 of the factors considered here weigh in favor 0f transfer. The accident occurred in Reagan County, Defendant Cretic maintains an office in the adjacent county, Intervenor Big B Crane, ”See, e.g., In re GE, 271 S.W.3d at 691 (setting out considerations for state-nonresident forum nonconviens analysis). “See Liberty Mut. Ins. C0. v. Transit Mix Concrete & Materials C0., No. 06-12-00117-CV, 2013 TeX. App. LEXIS 7978, *32 (Tex. App. — Texarkana June 28, 2013, pet. denied) (mem. op)) (setting out state-nonresident forum nonconveniens analysis) (citing Ensco Offshore Int’l C0,, 311 S.W.3d at 925 and In re GE, 271 S.W.3d at 689). ”See TEX. R. CIV. P. 176.3 (noting subpoena range of 150 miles). ”See Liberty Mm, 2013 Tex. App. LEXIS 7978 at *32 (holding n0 injustice When counties were adjacent, witnesses were Within subpoena range, and costs would not be significantly different). Defendant’s Brief in Support of its Motion t0 Transfer Venue Page 8 LLC maintains an office in the adjacent county, and most, if not all, parties and necessary Witnesses are there or within compulsory attendance by subpoena range. The transfer 0f this suit would not work an injustice t0 any party, and the balance 0f interest 0f all the parties predominates in favor of transfer to Reagan County. Accordingly, Defendants request that the case be transferred to Reagan County, a more convenient forum. PRAYER WHEREFORE, PREMISES CONSIDERED, Defendants pray that Defendants’ Motion to Transfer Venue be granted, that this Court transfer this case to Reagan County, and for such other and filrther relief t0 which they may be justly entitled. Respectfully submitted, PETERSON FARRIS BYRD & PARKER A Professional Corporation P. O. Box 9620 Amarillo, TX 79105-9620 (806) 374-53 17; FAX: 372-2107 cparkerngf—lawfirmsom Chris D. Parker; SB#1 5479 1 00 A TTORNE YS FOR DEFENDANTS ”See Yoroshii Invs. (Mauritius) PTE. Ltd. v. BP Int’l Ltd, 179 S.W.3d 639, 643 (Tex. App. — E1 Paso 2005, pet. denied). Defendant’s Brief in Support of its Motion t0 Transfer Venue Page 9 CERTIFICATE OF SERVICE I hereby certify that on this 25th day 0f January, 2019, I electronically filed the foregoing document with the Clerk 0f the above-named court, using the electronic case filing system 0f the court. Pursuant t0 Rule 21a of the Texas Rules of Civil Procedure, the following attorneys of record were served electronically: Charles M. Noteboom Brian W. Butcher Noteboom Law Firm 669 Airport Freeway, Suite 100 Hurst, TX 76053 butcher@noteboom.com John Holman Barr Burt Barr & Associates P.O. Box 223667 Dallas, TX 75222 jbarr@bbarr.com fi/fi Chris D. Parker Defendant’s Brief in Support of its Motion t0 Transfer Venue Page 10