On July 29, 2022 a Motion-Secondary was filed involving a dispute between Ackin, Len, Adjei, Ella, Anderson, Preshas, Belmorris, Joshua, Berry, Ernest, Boozer, Antwuan, Bradix, Dorothy, Brewer, Chautaugua, Brown, Alvin, Brown, Katrina, Brown, Kenneth, Brown, Lauren, Bustillos, Orlando, Carnell, Johnny, Chester, Kjatha, Cisse, Sekou, Cisses, Sekou, Crawford, September, Crosley, Tyler, Davis, Kimberly, Diggs, Jake, Duncan, Ronnie, Elhadi, Jihad Abd, Ferguson, Lily, Fisher, Rudolph, Fisher, Sheila, Fonteno, Bobby, Ii, Gaston, Lastesha, Gates, Rondalus, Green, Ashley, Greene, Pamela, Harris, Jaquan, Harrison, Carol, Harrison, Charles, Harrison, Edward, Harrison, Joyce M., Harrison, Latasha, Harrison, Latoya, Harrison, Sharon, Henry, Donmonique, Howard, Rafael, Issah, Willie, Jackson, Marcus, Johnson, Robert, Johnson, Trenton, Jones, Brandon, Jones, Cedric, Jones, Cheryl, Jones, Edward, Jones, Toshi, Jones, Valencia, Kelley, Mildred, Kelley, Raven, Knight-Trigg, Tamara, Lara, Ephraim, Lard, Lazerick, Lee, Jada, Lee, Laquesha, Lee, Mariah, Lester, Ella, Luckey, Angela, Martinez, Jose, Mccray, Cornelius, Mcpherson, Aaron, Mcqueen, Dominika, Mims, Stacey, Mitchell, Benjamin, Montgomery, Jaqueisha, Mosley, Phyllis, Muoka, Margaret, Nixon, Latoya, Nzioka, Joseph, Oldacre, Donald, Oldacre, Glory, Olivarez, Gloria, Pena, Epifani, Pipkins, Sherry, Porter, Michelle, Purifoy, Wakeisha, Rodriguez, Amber, Rodriguez, Jazun, Ross, Edward, Scott, Benjamin, Scott, Hasani, Shelby, Kenneth, Smith, Jermaine, Smith, Sabrina, Stoker, Lester, Swope, Janice, Talley, Kelvin, The Estate Of Cheryl Jones, Tienda, Alexa, Tittel, Michael, Walker, Latasha, Ware, Addonais, Ware, Tara, Ware, T'Ara, Washington, Eartha, Wells, Kristy, West, Laquita, White, Carolyn, White, Darla, Whitemon, Bobby, Whitemon, Dorothy, White, Quinton, White, Sandra, Williams, Calap, Iii, Williams, Jackie, Jr, Woodard, Vickie, Young, Ariel, Young, Pamela, and Brewer, Chautaugua, Davis, Kimberly, Mars Partners, Ltd, Oncor Electric Delivery Company Llc, Oncor Electric Delivery Company, Llc, Poly-America Gp, Llc, Poly America Inc, Poly-America Inc, Poly-America International Inc., Poly-America Lp, for PROPERTY in the District Court of Dallas County.
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FILED 11/1/20221z15 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Treva Parker-Ayodele DEPUTY CAUSE NO. DC-22-08610 LEN ACKIN, Individually, et al., IN THE DISTRICT COURT §§§§§§§§§§§§ Plaintiflk, VS. 191“ JUDICML DISTRICT POLY-AMERICA INTERNATIONAL INC., POLY-AMERICA, INC., POLY-AMERICA GP, LLC., POLY-AMERICA LP, and MARS PARTNERS, LTD, Defendants. DALLAS COUNTY, TEXAS DEFENDANTS’ RESPONSE T0 PLAINTIFFS’ MOTION FOR LEAVE TO EXTEND DEADLINE FOR PLAINTIFFS’ INITIAL DISCLOSURES COMES NOW, Defendants Poly—America International Inc; Poly-America GP, LLC; Poly-America LP; and MARS Partners, Ltd (hereinafter referred to as "Defendants") and files this Response to Plaintiffs’ Motion for Leave to Extend Deadline for Plaintiffs’ Initial Disclosures. I. BACKGROUND 1. Plaintiffs filed Plaintiffs’ Original Petition on July 29, 2022, Plaintiffs’ First Amended Petition on August 18, 2022, Plaintiffs’ Second Amended Petition on August 19, 2022, and Plaintiffs’ Third Amended Petition on October 14, 2022. This case has been on file for approximately three months. 2. Defendant Poly-America LP filed its answer on August 19, 2022, which was the first appearance in the lawsuit. DEFENDANTS’ RESPONSE TO PLAINTE‘FS’ MOTION FOR LEAVE TO EXTEND DEADLINE FOR PLAINTE‘FS’ INITIAL DISCLOSURES — PAGE 1 3. Based on the Texas Rules of Civil Procedure, absent a scheduling order governing otherwise, Plaintiffs’ and Defendants’ Initial Disclosures were due on September 19, 2022} 4. Plaintiffs’ Petitions state that the parties will conduct discovery under Level 3. Plaintiffs could have filed a Motion for Scheduling Order to request this court set staggered deadlines or deadlines different from those provided by the Texas Rules of Civil Procedure, but they failed to do so. 5. Plaintiffs’ pleadings allege that “an explosion” occurred on or about August 19, 2020, which resulted in their injuries [the evidence will reveal there was no explosion]. This lawsuit was initially filed on July 29, 2022, almost two years from the day when the incident made the basis of this lawsuit occurred. 6. Plaintiffs’ counsel requested an extension for filing Initial Disclosures, which was agreed upon. See emails between plaintiffs’ and defense counsel, attached herein as Exhibit A. The agreed deadline was November 3, 2022—a forty-five-day extension. Plaintiffs have had approximately three months to gather information to provide responses to Initial Disclosures. II. PLAINTIFFS’ MOTION IS DEFICIENT 7. According to Texas Rule of Civil Procedure 191.2, parties must “cooperate in discovery and to make any agreements reasonably necessary for the efficient disposition of the case. All discovery motions or requests for hearings relating to discovery must contain a 1 “A party must make the initial disclosures within 30 days after the filing of the first answer or general appearance unless a different time is set by the parties' agreement or court order. A party that is first served or otherwise joined after the filing of the first answer or general appearance must make the initial disclosures within 30 days after being served or joined, unless a different time is set by the parties' agreement or court order.” TEX. R. CIV. P. 194.2(a). DEFENDANTS’ RESPONSE TO PLAINTFFS’ MOTION FOR LEAVE TO EXTEND DEADLINE FOR PLAINTFFS’ INITIAL DISCLOSURES — PAGE 2 celtificate by the party filing the motion or request that a reasonable effort has been made to resolve the dispute without the necessity of court intervention and the effort failed.” 8. Plaintiffs’ counsel neither conferred with the defense regarding a second extension request before filing their Motion for Leave to Extend Deadline for Plaintiffs’ Initial Disclosures nor produced the requisite certificate in violation of the Texas Rules of Civil Procedure and this court’s local rules. 9. Also, Plaintiffs’ Motion for Leave to Extend Deadline for Plaintiffs’ Initial Disclosures did not request a new deadline or specify the information they are working to obtain in order to file their disclosures. 10. Thus, Plaintiffs’ motion is deficient. III. PLAINTIFFS HAVE HAD AMPLE TIME T0 FILE INITIAL DISCLOSURES 1 1. Plaintiffs have had approximately three months to gather knowledge to respond to the basic information which the Initial Disclosures require. This is certainly no “small-time window,” as Plaintiffs’ counsel describes the span of time in their Motion for Leave to Extend Deadline for Plaintiffs’ Initial Disclosures. 12. Additionally, prior to filing a lawsuit, counsel must conduct due diligence to ensure that a case has merit and is not frivolous.3 13. Due diligence would have revealed the very basic information requested in Initial Disclosures, including contentions, proper parties, fact Witnesses, and damages. 2 Id. 191.2. Also, the local rules for the 1915‘ Civil District Court say, "The Court expects parties to conference in compliance with local rules prior to making motion regarding discovery disputes." 2007 Bench Book Civil Courts Questionnaire, DALLAS COUNTY, https://www.dallascounty.org/Assets/uploads/docs/courts/civil-district/680007 BenchBook.pdf (updated Sept. 6, 2007). 3 See TEx. CIV. PRAC. REM. CODE §§ 9, 10. DEFENDANTS’ RESPONSE TO PLAINTE‘FS’ MOTION FOR LEAVE TO EXTEND DEADLINE FOR PLAINTE‘FS’ INITIAL DISCLOSURES — PAGE 3 14. Importantly, when Plaintiffs filed the lawsuit, they should have been aware of the legal bases for their causes of action. Otherwise, a lawsuit should not have been filed. IV. PLAINTIFFS MAY SUPPLEMENT THEIR DISCOVERY AS THEY GATHER ADDITIONAL INFORMATION 15. A party who has responded to a request for discovery with a disclosure or response is under a duty to supplement or correct the disclosures or responses to include information thereafter acquired.4 16 .If Plaintiffs learn that their disclosures were incomplete or incorrect when made, or, although complete and correct when made, are no longer complete and correct, the Texas Rules of Civil Procedure will actually require them to supplement the disclosures.5 17 . Therefore, Plaintiffs will have the opportunity to supplement as discovery progresses, and new information is gathered. Defendants are entitled to know the bases of Plaintiffs’ causes of action against them at an early stage, and Plaintiffs should be required to file Initial Disclosures by the agreed deadline. PRAYER For these reasons, Defendants ask the Court to set this motion for hearing and, after the hearing, deny Plaintiffs’ Motion for Leave to Extend Deadline for Plaintiffs’ Initial Disclosures and other relief to which they may show themselves justly entitled. 4 See TEX. R. CIV. P. 193.5(a). 5 Id. DEFENDANTS’ RESPONSE TO PLAINTE‘FS’ MOTION FOR LEAVE TO EXTEND DEADLINE FOR PLAINTE‘FS’ INITIAL DISCLOSURES — PAGE 4 Respectfully submitted, DEHAY & ELLISTON, L.L.P. 3500 Bank of America Plaza 901 Main Street Dallas, TX 75202-3736 Telephone: (214) 210-2400 Fax: (214) 210-2500 By: /S/ Pamela J. Williams GARY D. ELLISTON Texas State Bar No. 65 84700 PAMELA J. WILLIAMS Texas State Bar N0. 00791936 ATTORNEYS FOR DEFENDANT POLY-AMERICA INTERNATIONAL INC., POLY-AMERICA GP, LLC., POLY-AMERICA LP, and MARS PARTNERS, LTD CERTIFICATE OF SERVICE I HEREBY CERTIFY that, on November 1, 2022, a true and correct copy of the foregoing instrument has been provided to all counsel of record Via e-filing, in accordance with the Texas Rules of Civil Procedure, to all counsel of record. /S/ Pamela J. Williams PAMELA J. WILLIAMS DEFENDANTS’ RESPONSE TO PLAINTE‘FS’ MOTION FOR LEAVE TO EXTEND DEADLINE FOR PLAINTE‘FS’ INITIAL DISCLOSURES — PAGE 5 EXHIBIT A From: Will'amfi. Eamela ,1, To: Griffin MgMiIIin; Jgnnifgr Kinder Cc: rl n ; Subject: RE: 02222-00027148 MASTER/ACKIN, LEN, ET AL./DALLAS COUNTY 191$T/DC2208610: Len Akin vs. Poly America Date: Monday, September 26, 2022 12:25:29 PM ' Attachments: im 1. imagemlnng Sorry — November 3. Pam From: Williams, Pamela J. Sent: Monday, September 26, 2022 12:19 PM To: Griffin McMillin ; Jennifer Kinder Cc: Karla Santos ; Rocio Castro ; Page, Cris Subject: RE: Len Akin vs. Poly America Griffin, Thanks for your response. | interpret TRCP 194 as all parties’ disclosures are due 3O clays after the first appearance was filed. We filed an answer on behalf of Poly-America LP on August 19, 2022. Plaintiffs’ First Amended Petition was filed August 18 and Second Amended Petition was filed August 19, so all plaintiffs had been ”joined” in the lawsuit by August 19. By my calculation, all parties’ (plaintiffs and defendants) Initial Disclosures were due September 19, 30 days after Poly—America LP's answer was filed. We are willing to agree to a 45-day extension from the original deadline of September 19, which would be Thursday, October 3 for all plaintiffs. Thanks, Pam Regards, Pamela]. Williams | DeHay & Elliston, LLP 3500 Bank of America Plaza 901 Main Street Dallas, TX 75202 Phone: 214-210-2400 Direct: 214-210-2449 Fax: 214-210-2500 Email: pwilliams@dehay.com ' From:Griffin McMillin< m millin st allkin r. > Sent: Monday, September 26, 2022 10:24 AM ' To: Williams, Pamela J. ; Jennifer Kinder <'kin r Ilkin r.n > ' Cc: Karla Santos Subject: Re: Len Akin vs. Poly America WARNING: External Email —Think Before You Click Hello Pamela, | work forJennifer and here is how we calculated our Initial Disclosure deadlines. included | Rule 194.2(a) to help explain my reasoning. 194.2 Initial Disclosures- (a)Time for Initial Disclosures. A party must make the initial disclosures within 30 clays after the filing of the first answer or general appearance unless a different time is set by the parties' agreement or court order. A party that is first served or otherwise joined after the filing of the first answer or general appearance must make the initial disclosures within 30 days after being served or joined, unless a different time is set by the parties' agreement or court order. | agree that the deadline for the Original Petition was 9/17/2022, the rule is clear there. When was calculating the deadline for the First and Second Amended Petition Plaintiffs, my | logic was thus. The First was filed on 8/18 and the Second was on 8/19. An Amended Answer was filed on 8/26. Rule 194.2 only contemplates dates based on Answers or other Defendant general appearances. Because the rule sets deadlines around what Defendant does and not what Plaintiff does, believe that the rule would set the deadline for Initial Disclosures for the | First and Second Petition Plaintiffs as 9/26/2022, thirty days after the First Amended Answer. If you have case law or statutes that conflict with this interpretation, please let me know. Also worth noting is that Oncor, who we added as a Defendant in the First Amended Petition, has not been served yet. Based on this interpretation of the rule and with a 45-day extension, our new deadlines would be 11/1/2022 for the Original Plaintiffs and 11/10/2022 for the First and Second Amended Petition Plaintiffs. Please let me know if you have any questions and if you agree with the new deadlines. Thank you for your time, Griffin McMillin From: Williams, Pamela J. < willi m h . m Sent: Monday, September 26, 2022 9:20 AM To: Jennifer Kinder <'kinder 'ustcallkinder.net> Cc: Griffin McMillin ; Karla Santos ; Rocio Castro Subject: RE: Len Akin vs. Poly America Jennifer, | want to make sure we are on the same page with respect to deadlines. If you are interpreting TRCP 194 to show the deadline for plaintiffsjoined in amended petitions, the disclosures would be clue 30 days after theirjoinder. Plaintiffs’ First Amended Petition was filed 8/18/2022 so disclosures for those plaintiffs would have been due 9/17/2022. Plaintiffs’ Second Amended Petition was filed 8/19/2022 so disclosures for those plaintiffs would have been due 9/18/2022. Let me know how you are calculating those deadlines. Thanks, Pam From: Jennifer Kinder <‘kinder 'ustcallkinde > Sent: Friday, September 23, 2022 11:38 AM To: Williams, Pamela J. Cc:Griffin McMillin < mcmillin 'ust Ilkin r.n >; Karla Santos Subject: RE: Len Akin vs. Poly America WARNING: External Email —Think Before You Click Thank you, Pamelall My calendaring indicates no current Disclosure deadline on Plaintiffs in the lSt amended and 2nd amended petitions. Original Petition pleads 44 Plaintiffs and 1 estate; lSt Amended Petition pleads 122 Plaintiffs and 3 estates (which would include the previous Plaintiffs and estate). The 2nd Amended Petition pleads 131 Plaintiffs and 3 estates (which includes a|| Plaintiff’s and estates from Original and lst Amended Petition). Now of course could be wrong in my reading of the newest I revisions to TRCP, but think am a accurate on my reading. I | | apologize for requesting additional time but would you be agreeable to an additional 15 days (45 days total) for Responses to Request for Disclosures on Plaintiffs Original Petition. understand it | isn’t relevant, but we were retained by Fred Nesslers office less than 6O days before the statute and | have 2 paralegals working full time on these medical records. Jennifer Anne Kinder Kinder Law PLLC 3701 W. Northwest Highway, Suite 304 Dallas, Texas 75220 Tel (214) 812-9800 Fax (214) 484-2144 www.’ustcallkinder.net lnstagram @badblaw TikTok @badbitchlaw From: Williams, Pamela J. Sent: Thursday, September 22, 2022 4:03 PM ' To: Jennifer Kinder <'kin r Ilkin r.n > Cc: Griffin McMillin ; Rocio Castro Subject: RE: Len Akin vs. Poly America Jennifer, nice to meet you. My client is agreeable to a 30 day extension for plaintiffs’ Initial Disclosures. It is For clarification, did you mean all the plaintiffs? show there are more than 39 plaintiffs in the case. | Thanks, Pam Regard; Pamela J. Williams | DeHay & Elliston, LLP 3500 Bank of America Plaza 901 Main Street Dallas, TX 75202 Phone: 214-210-2400 Direct: 214-210-2449 Fax: 214-210-2500 Email: pwilliams@gehay.ggm From: Jennifer Kinder <‘kinder 'ustcallkinder.ne > Sent: Thursday, September 22, 2022 12:32 PM To: Williams, Pamela J. ' Cc: Griffin McMillin Subject: Len Akin vs. Poly America Importance: High WARNING: External Email —Think Before You Click Hello Pamela, it is really nice to meet you. Haven’t the name Dehay in over 20 yearsll worked at l Baron & Budd for 18 years and worked with dozens of Dehay lawyers in asbestos litigation. Wanted to chat with you about Plaintiff’s Disclosures. As you can imagine, trying to collect medical records for the 39 plaintiffs in Plaintiff’s Original Petition is a challenge at best. Hoping you are agreeable to a 6O day extension for these 39. Can you let me know or give me a call to discuss. Thanks Pamela and look forward to working with you. Jennifer Anne Kinder Kinder Law PLLC 3701 W. Northwest Highway, Suite 304 Dallas, Texas 75220 Tel (214) 812—9800 Fax (214) 484—2144 www.’ustcallkinder.net lnstagram @badblaw TikTok @badbitchlaw CONFIDENTIALITY NOTICE This e-mail is covered — by the Electronic Communications Privacy Act, 18 U.S.C. Secs 2510—2521, and is legally privileged. This message and any attached documents contain information from the law firm of DeHay & Elliston, L.L.P. that may be privileged and confidential and protected from disclosure. If the reader of this message is not the intended recipient, or an employee or agent responsible for delivering this message to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. if you have received this communication in error, please notify us immediately by replying to the message and deleting it from your computer. Thank you. CONFIDENTIALITY NOTICE - This e—mail is covered by the Electronic Communications Privacy Act, 18 U.S.C. Secs 2510-2521, and is legally privileged. 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Cris Page on behalf of Pamela Williams Bar No. 791936 cpage@dehay.com Envelope ID: 69769406 Status as of 11/1/2022 3:22 PM CST Case Contacts Name BarNumber Email TimestampSubmitted Status John CStewart john.stewart@oncor.com 11/1/2022 2:53:48 PM SENT Angie Ranton angela.ranton@oncor.com 11/1/2022 2:53:48 PM SENT Pamela J.Williams pwilliams@dehay.com 11/1/2022 2:53:48 PM SENT Diane Hallmark diane.hallmark@oncor.com 11/1/2022 2:53:48 PM SENT ROCIO CASTRO RCASTRO@JUSTCALLKINDER.NET 11/1/2022 2:53:48 PM SENT Associated Case Party: LEN ACKIN Name BarNumber Email TimestampSubmitted Status Jennifer Kinder 787837 jkinder@justcallkinder.net 11/1/2022 2:53:48 PM SENT FRED NESSLER fwn@ness|erlaw.c0m 11/1/2022 2:53:48 PM SENT Griffin McMillin gmcmillin@justcallkinder.net 11/1/2022 2:53:48 PM SENT