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DIMET, S.A. DE C.V.
Vv. 240 JUDICIAL DISTRICT
CONSOLIDATED SHIP REPAIR &
HYDRA SUBSEA, LLC AND JAH
HENDERSON AUCTIONS OF FORT BEND
Defendants., COUNTY, TEXAS
Plaintiff, Dimet SA de CV, files the following documents previously filed in Federal
Court, after removal, but before remand.
Texas Bar No. 24075405
James C. Mosser
Texas Bar No. 00789784
8100 Dallas Parkway
courtdocuments@mosserlaw.com
Lawyers for Plaintiffs
748 E. Van Buren Street, Suite A
Brownsville, Texas 78520
Fax: 956-542-3225
I certify that a true and correct copy of the attached document was served according
to Tex. R. Civ. P. 8, 21 and 21a electronically through the Texas Efiling system.
/s/Nicholas D. Mosser
Nicholas D. Mosser
CONSOLIDATED SHIP REPAIR &
HYDRA SUBSEA, LLC; and
Pursuant to 28 U.S.C. §§1331, 1332, 1333, 1441, and 1446, and without waiving
any rights, privileges, or defenses they may have, Defendants Consolidated Ship Repair &
Marine Fabrication, LLC and Hydra Subsea, LLC (collectively, “Defendants”) remove the
1 On January 25, 2023, Plaintiffs , S.A. de C.V. and Jose Luis Leyva
(collectively, “Plaintiffs”) filed their Original Petition and Application for Temporary
Restraining Order against Defendants and Henderson Auctions in the 240 District Court
2. In accordance with 28 U.S.C. §1446 and the Local Rules of the United
States District Court for the Southern District of Texas, Houston Division, a copy of the
, together with all other pleadings, orders and the
docket sheet are attached and incorporated by reference for all
file this Notice of Removal within the 30day time period set
This case is removable pursuant to 28 U.S.C. §144 there is
complete diversity of citizenship between the parties and the amount in controversy
exceeds $75,000.00. 28 U.S.C. 28 U.S.C.
Plaintiff Jose Luis Leyva and Defendant Consolidated Ship Repair & Marine Fabrication,
LLC entered into an Access and Handling Agreement governed by the General
Maritime Law of the United States as a maritime contract As a result, this Court has
Venue is proper Division of the Southern District of Texas
All conditions and procedures for removal have been satisfied, including
those set forth in 28 U.S.C. §1446 and the Local Rules of the United States District Court
for the Southern District of Texas. list of counsel of record and an index of matters being
filed are attached and incorporated by reference for all
Pursuant to 28 U.S.C. §1446(d), Defendant simultaneously filing a true and
A hearing was held on February 13, 2023 on Plaintiff's application for temporary restraining order, but no
order has been entered as of the date of this removal as required by The Plaintiffs’
application is defective regardless as ffidavit was attached to Plaintiffs’ application as required by
correct copy of this Notice of Removal with the Clerk of the District Court of
County, Texas. A copy of th is attached
For the foregoing reasons, and in conformance with the requirements set forth in
28 U.S.C. §1446(d) and the Local Rules of the United States District Court for the Southern
District of Texas, Consolidated Ship Repair & Marine Fabrication, LLC and
Hydra Subsea, LLC, remove this action from the District Court of Fort Bend
ENSHAW
I hereby certify that on this day of, 20, a true and correct copy of
the forgoing was served upon the following counsel of record in accordance with the
IGUEL TTORNEYS
Filed
1/25/2023 5:20 PM
Beverley McGrew Walker
District Clerk
Fort Bend County, Texas
Ashley Alaniz
No.23-DCV-300674
DIMET, S.A. DE C.V. AND JOSE LUIS IN THE DISTRICT COURT
LEYVA
Plaintiffs, Fort Bend County - 240th Judicial District Court
Vv. JUDICIAL DISTRICT
CONSOLIDATED SHIP REPAIR &
MARINE FABRICATION, LLC,
HYDRA SUBSEA, LLC AND
HENDERSON AUCTIONS
Defendants. OF FORT BEND COUNTY, TEXAS
PLAINTIFFS’ ORIGINAL PETITION AND APPLICATION
FOR TEMPORARY RESTRAINING ORDER
PLAINTIFFS’ ORIGINAL PETITION
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COME Dimet, S.A. de C.V. and Jose Luis Leyva, hereinafter called Plaintiffs,
complaining of and about Consolidated Ship Repair & Marine Fabrication, LLC, Hydra Subsea,
LLC and Henderson Auctions, hereinafter called Defendants, and for cause of action shows unto
the Court the following:
DISCOVERY CONTROL PLAN LEVEL
Plaintiffs intend that discovery be conducted under Discovery Level 2.
PARTIES AND SERVICE
Plaintiff, Dimet, S.A. de C.V., is a corporation organized under the laws of Mexico.
3 Plaintiff, Jose Luis Leyva, is a resident of Mexico.
3 Defendant Consolidated Ship Repair & Marine Fabrication, LLC (“Consolidated”),
a Limited Liability Partnership based in Texas, may be served with process pursuant to Section
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17.022 of the Texas Civil Practice and Remedies Code by serving DRDA, PLLC, registered agent
of said partnership, at 1120 Bay Area Blvd., Houston, Texas 77058. Service of said Defendant as
described above can be effected by personal delivery.
4 Defendant Hydra Subsea, LLC (“Hydra”), a Limited Liability Partnership based in
Texas, may be served with process pursuant to Section 17.022 of the Texas Civil Practice and
Remedies Code by serving DRDA, PLLC, a registered of said partnership, at 1120 Bay Area Blvd.,
Houston, Texas 77058. Service of said Defendant as described above can be effected by personal
delivery.
5 Defendant Henderson Auctions, a General Partnership based in Louisiana, may be
served with process pursuant to Section 17.022 of the Texas Civil Practice and Remedies Code by
serving J.A.H. Enterprises, Inc., a partner of said partnership, at 13340 Florida Blvd., Livingston,
Louisiana 70754. Service of said Defendant as described above can be effected by personal
delivery.
JURISDICTION AND VENUE
The subject matter in controversy is within the jurisdictional limits of this court.
Plaintiffs seek:
a. monetary relief of $250,000 or less and non-monetary relief.
8 This court has jurisdiction over the parties because Defendants are Texas residents.
9. Venue in Fort Bend County is proper in this cause under Section 15.002(3) of the
Texas Civil Practice and Remedies Code because it is the county of Defendants’ principal office.
FACTS
10. On or about September 27, 202 Plaintiffs viewed a Demag Crane (the “Crane”) at
Consolidated’s facility at 8200 Old Yacht Club Road, Port Arthur, Texas 77642. The Crane, owned
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by Consolidated, was listed for sale on Defendant Henderson Auctions’ website. In the listing for
the Crane, Henderson Auctions stated that The Crane was “...fully operational crane just has a bad
card that won’t let the load charts load up so its locking the machine out, the machine can be
bypassed to operate.” Additionally, Larry McGuire, as representative for Consolidated, showed
Leyva a video of the Crane with the engine running. The video of the operating crane was a
significant factor in the decision to purchase the Crane.
11. On or about September 28, 2022, Plaintiffs contracted with Henderson Auctions
for the purchase of the Crane for One hundred fifty-four thousand dollars and no cents
($154,000.00)
12. On or about September 28, 2022, Jose Leyva, as representative for Dimet, entered
into a verbal contract with Trevor T. Davis (“Davis”), President/CEO of Hydra and Consolidated
whereby Consolidated would provide to Dimet storage and crane use for a fixed price of
$15,000.00. There were no additional storage costs or deadlines for removal discussed at this time.
13. On or about October 11, 2022, Davis communicated via email with Levya and
stated that the Crane had to be removed on or before November 5, 2022.
14. On or about October 15, 2022, Davis sent a draft of an agreement via email to Leyva
stating that the Crane had to be removed the crane on or before November 5, 2022, with storage
charges of Seven hundred fifty dollars and no cents ($750.00) per day. Leyva did not sign the
agreement.
15. On or about October 18, 2022, Leyva requested delivery of thirteen counterweights
that Davis took from the crane without the consent of Leyva. Davis responded that he would
deliver a portion of the counterweights with the rest delivered at the end of the load. This interfered
with the charging plans, causing additional costs for the work.
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16. On or about October 21, 2022, Davis requested payment of the Fifteen thousand
dollars and Dimet requested that Davis issue an invoice. Davis replied that he needed the payment
of these services to him personally and not to the company. Dimet responded that they needed the
name on an invoice and bank details to be able to transfer the money as requested.
17. On October 25, 2022, Davis sent via mail a reminder that the crane had to be
removed on November 5, 2022, and that after that date Hydra could not support with the crane to
load, with a $750 daily storage fee.
18. On October 26, 2022, an email was sent to Kurt Sonnier, representative of
Henderson Auctions, requesting support to speak with Davis about his requests and asking him to
intercede to remove the crane on the terms initially agreed.
19. On or about November 2, 2022, Kurt Sonnier responded after more emails asking
for support and phone calls that he did not answer, answering that he could not support and that it
was Davis’ decision.
20. On or about November 2, 2022, Leyva arrived at the Consolidated facility in Port
Arthur, Texas with a technician who traveled from Mexico, due to the lack of availability of
technicians specialized in the crane in the area. After three weeks of efforts to start the crane, hiring
mechanics who specialized in this engine, and replacing several parts that were damaged, the Crane
engine still could not be started.
21. On or about November 7, 2022, Leyva sent an email to Davis requesting support to
disassemble the crane. Davis agreed and left it to the discretion of his yard manager, Larry
McGuire, to support the efforts. Dimet is willing to pay the costs for this support, but it has not
been invoiced to date.
22. On or about November 8, 2022, Leyva emailed a signed Access and Handling
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agreement to Davis.
23. On or about November 9, 2022, Davis sent an email stating that if there was
progress in the removal of the Crane, he could remove the collection of storage fees.
24. On or about November 9, 2022, Davis requested the personal cell phone number of
Leyva and wrote via WhatsApp, asking for the payment of the $ 15,000 in check or cash. Leyva
replied that Dimet could only make payment via wire transfer and with an invoice.
25. On or about November 21, 2022, support for disassembly work was requested to
Consolidated for tools and labor, which Dimet agreed to pay.
26. On December 9, 2022, Dimet notified Larry McGuire that we would have to stop
work for the time being as Dimet had done everything possible and needed suppliers were
unavailable until after the new year began. Larry McGuire verbally commented that they could
help in some things during the remaining weeks of December and Dimet agreed to be back at the
beginning of the year 2023.
27. On or about December 15, 2022, Davis sent an email detailing storage costs.
28. On or about December 27, 2022, Davis asked for a solid plan for the removal of
what remains of the crane and for payment.
29. On or about December 27, 2022, Leyva responded that he would return as soon as
possible and that the dates were very complicated due to lack to availability of workers.
30. On or about January 2, 2023, Leyva returned to Port Arthur with the intention of
speaking in person and negotiating the terms that Davis imposed. Davis replied via email on
January 3, 2023, that he did not have time and that we should talk to his yard manager, Larry
McGuire.
31. On or about January 3, 2023, the crane technician arrived to work on the Crane,
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adding additional expenses for Dimet.
32. On or about January 4, 2023, Leyva spoke with Larry McGuire and expressed his
concerns and the alternative of taking a crane from Dimet’s property located in Houston to finish
the work. McGuire replied that he could not help and that these issues had to be discussed with
Davis.
33. Davis replied on or about January 4, 2023, that some requirements had to be met in
order to carry the crane.
34. On or about January 5, 2023, Dimet found another alternative to disassemble the
rest of the crane without the use of another crane. Davis requested payment and commented that
he could be interested in buying this crane.
35. On or about January 7, 2023, Davis sent an email demanding payment.
36. On or about January 11, 2023, Davis sent an email demanding payment and stating
that Dimet would no longer be able to remove any part of the crane and would not be able to enter
Consolidated’s facilities after January 12, 2023. On this day Dimet had arranged transport to be
able to remove more parts of the crane, but access was denied. Removing those parts would have
achieved a definitive advance in the disassembly and removal but Davis refused.
37. On or about January 12, 2023, Davis sent an email demanding One hundred eight
thousand nine hundred seventy dollars and no cents ($108,970.00) for the initial agreement,
storage fees, and assistance in disassembling the Crane.
CLAIM FOR BREACH OF CONTRACT
38. Plaintiffs hereby incorporate by reference all facts and circumstances set forth
under the foregoing paragraphs.
39. All conditions precedent to the performance of said Defendants under the contracts
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have been met.
40. The contractual obligations of Plaintiffs have been fully performed.
41. Defendants failed to perform their contractual obligations, specifically, delivering
the Crane was not fully functional as stated on Defendant Henderson Auctions’ website and as
represented by the video presented by Larry McGuire.
42. The breach was material as Defendants substantially failed to perform a material
obligation or duty required by the contracts, namely, to deliver a fully functioning crane.
43. Defendants’ breach of contract described hereinabove has injured Plaintiffs,
specifically, Plaintiffs incurred actual damages of the purchase price for the Crane that was not
functioning and the cost of hiring a Crane technician to attempt to repair the Crane and further
allege that such injuries were a natural, probable, and foreseeable consequence of said Defendant’s
breach.
CLAIM FOR NEGLIGENT MISREPRESENTATION
44 Plaintiffs hereby incorporate by reference all facts and circumstances set forth
under the foregoing paragraphs.
45. Plaintiffs claim that Defendants’ actions constitute negligent misrepresentation. To
prevail on a cause of action for negligent misrepresentation, a plaintiff must show: (1) a
representation made by a defendant in the course of its business or in a transaction in which it has
a pecuniary interest; (2) the representation conveyed false information for the guidance of others
in their business; (3) the defendant did not exercise reasonable care or competence in obtaining or
communicating the information; and (4) the plaintiff suffers pecuniary loss by justifiably relying
on the representation. JPMorgan Chase Bank, N.A. v. Orca Assets G.P., LLC, 546 S.W.3d, 648
(Tex. 2018).
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46. Defendants falsely claimed that they would deliver a functioning crane to Plaintiffs,
resulting in lost income to Plaintiffs.
CLAIM FOR COMMON LAW FRAUD
47. Plaintiffs hereby incorporate by reference all facts and circumstances set forth
under the foregoing paragraphs.
48. Plaintiffs would show that Defendants engaged in fraudulent inducement. A
fraudulent-inducement claim requires proof that: (1) the defendant made a material
misrepresentation; (2) the defendant knew at the time that the representation was false or lacked
knowledge of its truth; (3) the defendant intended that the plaintiff should rely or act on the
misrepresentation; (4) the plaintiff relied on the misrepresentation; and (5) the plaintiff's reliance
on the misrepresentation caused injury. International Business Machines Corporation v. Lufkin
Industries, LLC, 573 8.W.3d 224 (Tex. 2019).
49. Plaintiffs claim that Defendants made materially false representations to Plaintiffs
with the knowledge of their falsity or with reckless disregard of the truth with the intention that
such representations be acted upon by Plaintiffs, and that Plaintiffs relied on these representations
to their detriment.
50. Plaintiffs would further show that Defendants concealed or failed to disclose
material facts within the knowledge of Defendants, that Defendants knew that Plaintiffs did not
have knowledge of the same and did not have equal opportunity to discover the truth, and that
Defendants intended to induce Plaintiffs to enter into the transaction made the basis of this suit by
such concealment or failure to disclose.
3i. As a proximate result of such fraud, Plaintiffs sustained the damages described
more fully hereinbelow.
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DAMAGES
52. As a direct and proximate result of the occurrence made the basis of this lawsuit,
Plaintiffs, Dimet, S.A. de C.V. and Jose Luis Leyva, were caused to incur the following damages:
@) Out-of-pocket expenses;
) Loss of use; and
© Past mental anguish
53. Plaintiffs would show that Defendants’ conduct was done knowingly and
intentionally, and as such, Plaintiffs are entitled to recover from Defendants two times that portion
of its actual damages which do not exceed $1,000.00 and up to three times the amount of actual
damages suffered by Plaintiffs, for which Plaintiffs seek from Defendants, jointly and severally.
54. Plaintiffs allege that the conduct of Defendants was with malice and in conscious
disregard of Plaintiffs’ rights and therefore, Plaintiffs are entitled to exemplary damages, not to
exceed Two hundred fifty thousand dollars (250,000.00).
ATTORNEY’S FEES
55. Request is made for ali costs and reasonable and necessary attorney's fees incurred
by or on behalf of Plaintiffs herein, including all fees necessary in the event of an appeal of this
cause to the Court of Appeals and the Supreme Court of Texas, as the Court deems equitable and
just, as provided by Chapter 38 of the Texas Civil Practice and Remedies Code and Section
17.50(d) of the Texas Business and Commerce Code.
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PLAINTIFFS' APPLICATION FOR TEMPORARY RESTRAINING ORDER AND
TEMPORARY INJUNCTION
56. In light of the above-described facts, Plaintiffs seek recovery from Defendants.
37. Plaintiffs are likely to succeed on the merits of this lawsuit because Plaintiffs can
prove each and every element of its causes of action against Defendants. However, even showing
that it is likely to prevail on a single cause of action would be sufficient to show that it would be
able to prevail on the merits and the relief requested should be granted.
58. Unless this Honorable Court immediately restrains Defendants, Plaintiffs will
suffer immediate and irreparable injury, for which there is no adequate remedy at law to give
Plaintiffs complete, final and equal relief. More specifically, Plaintiffs will show the court the
following:
a. The harm to Plaintiffs is imminent because Trevor T. Davis, President/CEO of
Defendants Hydra and Consolidated has stated, “If we do not hear from you by January 17th, 2023,
we will dispose of the crane immediately. We have a scrap company standing by to cut it up.” and
“Pay me or I’m done screwing around with these bullshit games you are playing.”
b. This imminent harm will cause Plaintiffs irreparable injury in that
Defendants are threatening to dispose of the Crane that is owned by Plaintiffs.
¢. There is no adequate remedy at law which will give Plaintiffs complete,
final and equal relief because once Defendants have destroyed the Crane, any and all
evidence of intentional or grossly negligent misrepresentations would have been destroyed
or otherwise compromised, and would significantly impact Plaintiff's prosecution of this
matter.
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BOND
59. Plaintiffs are willing to post a reasonable temporary restraining order bond and
request the court to set such bond.
REMEDY
60. Plaintiffs have met Plaintiffs’ burden by establishing each element which must be
present before injunctive relief can be granted by this court, therefore Plaintiffs are entitled to the
requested temporary restraining order.
61. Plaintiffs request the court to restrain Defendants from disposing of, destroying,
removing, disassembling, discarding, selling, scrapping, or in any other way harming or affecting
the Crane.
62. It is essential that the court act immediately, prior to giving notice to Defendants
and a hearing on the matter because Defendant has threatened immediate action to dispose of the
Crane,
63. In order to preserve the status quo during the pendency of this action, Plaintiffs
request that Defendants be temporarily enjoined from performing any action that would affect the
Crane.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiffs, Dimet, S.A. de C.V. and Jose
Luis Leyva, respectfully pray that:
a. Defendants be cited to appear and answer herein, and that upon a final hearing of the
cause, judgment be entered for the Plaintiffs against Defendants, jointly and severally, for
damages in an amount within the jurisdictional limits of the Court; together with pre-
judgment interest at the maximum rate allowed by law; post-judgment interest at the legal
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rate, costs of court;
b. A temporary restraining order will issue without notice to Defendants, restraining
Defendants, Defendants’ officers, agents, servants, employees, agents, servants, successors
and assigns, and attorneys from directly or indirectly accessing or affecting the Crane;
¢, The Court sets a reasonable bond for the temporary restraining order;
d. After notice and hearing, a temporary injunction will issue enjoining and restraining
Defendants, Defendants’ officers, agents, servants, employees, successors and assigns, and
attorneys from directly or indirectly accessing or affecting the Crane;
€. After trial on the merits, the Court permanently enjoin Defendants, Defendants’
officers, agents, servants, employees, successors and assigns, and attorneys from directly
or indirectly accessing or affecting the Crane;
f. such other and further relief to which Plaintiffs may be entitled at law or in equity.
Respectfully submitted,
SAN MIGUEL ATTORNEYS, P.C.
4
By:
Alan Ray San Miguel
Texas Bar No. 24072323
Paul Murphy
Texas Bar No. 00797128
Grant McEwen
Texas Bar No. 24062880
Email: service@sanmiguel.law
25211 Grogans Mill Road, Suite 110
The Woodlands, Texas 77380
Tel: (713) 795-5299
Fax: (713) 554-0611
Attorneys for Plaintiffs
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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.
Envelope ID: 72403335
Status as of 2/3/2023 9:18 AM CST
Associated Case Party: Dimet, S.A. de C.V.
Name BarNumber | Email TimestampSubmitted Status
Alan RaySan Miguel service@sanmiguel.law | 2/3/2023 9:17:54 AM SENT
Associated Case Party: JoseLuisLeyva
Name BarNumber | Email TimestampSubmitted Status
Alan RaySan Miguel service@sanmiguel.law | 2/3/2023 9:17:54 AM SENT
23-DCV-300674 240th Judicial District Court
Dimet, S.A. de C.V. and Jose Luis Leyva V. Consolidated Ship Repair & Marine Fabrication, LLC, Hydra Subsea, LLC
and Henderson Auctions
OFFICER’S OR AUTHORIZED PERSON’S RETURN
Came to hand on the day of » 20_, at o'clock __M. Executed
at , Within the County of
, at o'clock __M. on the day of
20__, by delivering to the within named
in person, a true copy of this citation together with the accompanying copy of the petition, having first
attached such copy of such petition to such copy of citation and endorsed on such copy of citation the date of
delivery.
Total fee for serving citation at $80.00 each $
Name of Officer or Authorized Person
County, Texas
B
; Signature of Deputy or Authorized Person
*State day and hour and place of serving each person.
mS SS SSS SSS SS a a Se ee et
COMPLETE IF YOU ARE A PERSON OTHER THAN A SHERIFF, CONSTABLE, OR CLERK OF THE COURT.
in accordance with Rule 107: The officer or authorized person who serves, or attempts to serve, a citation shall sign the retum. The signature is
not required to be verified. If the return is signed by a person other than a sheriff, constable, or the clerk of the court, the retum shail be signed
under penalty of perjury and contain the following statement:
“My name is
(First, Middle, Last)
my date of birth is. , and my address is
(Street, City, Zip)
| DECLARE UNDER PENALTY OF PERJURY THAT THE FOREGOING IS TRUE AND CORRECT.
Executed in County, State of , on the
day of
Declarant/ Authorized Process Server
(Id # & expiration of certification)
SERVICE
Citation issued to Consolidated Ship Repair & Marine Fabrication, LLC on 2/3/2023.
SERVICE FEE NOT COLLECTED
BY DISTRICT CLERK THE STATE OF TEXAS
Delivered __ day
CITATION
of, nd _=th> —_
2083
TO: CONSOLIDATED SHIP REPAIR & MARINE FABRICATION, LLC
REGISTERED AGENT, DRDA PLLC @
1120 BAY AREA BLVD
HOUSTON TX 77058
NOTICE:
You have been sued. You may employ an attorney. If you or your attorney do not file a written answer with the
clerk who issued this citation by 10:00 a.m. on Monday next following the expiration of twenty days after you were
served this citation and PLAINTIFFS" ORIGINAL PETITION AND APPLICATION FOR TEMPORARY
RESTRAINING ORDER filed on January 25, 2023, a default judgment may be taken against you. In addition to
filing a written answer with the clerk, you may be required to make initial disclosures to the other parties of this suit.
These disclosures generally must be made no later than 30 days after you file your answer with the clerk. Find out
more at TexasLawHelp.org.
The case is presently pending before the 240TH JUDICIAL DISTRICT COURT of Fort Bend County sitting in
Richmond, Texas. It bears cause number 23-DCV-300674 and is styled:
DIMET, S.A. DE C.V. AND JOSE LUIS LEYVA V. CONSOLIDATED SHIP REPAIR & MARINE FABRICATION,
LLC, HYDRA SUBSEA, LLC AND HENDERSON AUCTIONS
The name and address of the attorney for PLAINTIFF(S) is:
ALAN RAY SAN MIGUEL
SAN MIGUEL ATTORNEYS PC
25211 GROGANS MILL ROAD SUITE 110
THE WOODLANDS TX 77380
713-795-5299
The nature of the demands of said PLAINTIFF(S) is shown by a true and correct copy of the PLAINTIFFS’
ORIGINAL PETITION AND APPLICATION FOR TEMPORARY RESTRAINING ORDER accompanying this
citation and made a part hereof.
If this Citation is not served, it shall be returned unserved. Issued under my hand and seal of said Court, at
Richmond, Texas, on this the 3rd day of February, 2023.
BEVERLEY MCGREW WALKER, DISTRICT CLERK
FORT BEND COUNTY, TEXAS
Physical Address:
1422 Eugene Heimann Circle, Room 31004
Richmond, Texas 77469
Mailing Address: ¥
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301 Jackson Street, Room 101
Richmond, Texas 77%
By: 2
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Deputy District Clerk VANESSA VASQUEZ Sox
Telephone: (281) 344-3959
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SERVICE
JOSE LUIS LEYVA,
CONSOLIDATED SHIP REPAIR &
HYDRA SUBSEA, LLC; and
IGUEL TTORNEYS
JOSE LUIS LEYVA,
CONSOLIDATED SHIP REPAIR &
HYDRA SUBSEA, LLC; and
1 Original Petition and Application for Temporary Restraining Order
2. Citation to Consolidated Ship Repair & Marine Fabrication, LLC
3. Docket Sheet
EXHIBIT D
CAUSE NO. DCV
DIMET, S.A. DE C.V. and IN THE DISTRICT COURT OF
JOSE LUIS LEYVA,
Plaintiff
VS. FORT BEND COUNTY, TEXAS
CONSOLIDATED SHIP REPAIR &
MARINE FABRICATION, LLC;
HYDRA SUBSEA, LLC; and
HENDERSON AUCTIONS
Defendants DISTRICT COURT
NOTICE OF FILING OF NOTICE OF REMOVAL
Defendants Consolidated Ship Repair & Marine Fabrication, LLC and Hydra
Subsea, LLC hereby notif this Court of the removal of this cause to the United States
District Court for the Southern District of Texas Houston Division February 2 , 2023
A copy of the Notice of Removal that has been filed with the clerk of the United State
District Court for the Southern District of Texas Houston Division is attached to this
notice as Exhibit A
Respectfully submitted,
RENSHAW, PC
/s/ Justin W.R. Renshaw
Justin W. R. Renshaw
Texas Bar No. 24013392
2900 Weslayan, Su
Houston, Texas 77027
Phone:
Fax: 713.400.9006
justin@renshaw law.com
Attorney for Defendants
Consolidated Ship Repair & Marine
Fabrication, LLC and
Hydra Subsea, LLC
CERTIFICATE OF SERVICE
I hereby certify that I forwarded a true and correct copy of the foregoing to all
counsel of record on this day of February, 2023
Email: service@sanmiguel.law
Alan Ray San Miguel
IGUEL TTORNEYS P.C.
25211 Grogans Mills Road, Suite 110
The Woodlands, Texas 77380
/s/ Justin W.R. Renshaw
Justin W. R. Renshaw
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
DIMET, S.A. DE C.V. and JOSE LUIS §
LEYVA,
Plaintiffs
C. A. NO. 4:23-cv 00601
CONSOLIDATED SHIP REPAIR & §
MARINE FABRICATION, LLC; §
HYDRA SUBSEA, LLC; AND
HENDERSON AUCTIONS,
Defendants
PLAINTIFFS’ APPLICATION FOR TEMPORARY RESTRAINING ORDER
WITH EQUITABLE RELIEF
Pursuant to Rule 65(b) of the Federal Rules of Civil Procedure and Local Rule
65.1(a), Plaintiffs Dimet, S.A. de C.V. and Jose Luis Leyva, hereby appl to this Court for
a temporary restraining order ("TRO") with other equitable relief. In support of the motion,
Plaintiffs state as follows:
Plaintiffs bring this action to halt Defendants threat to disassemble and
dispose ofa Crane owned by Defendants.
Plaintiffs purchased a Demag Crane (the “Crane”) from Defendant
Consolidated Ship Repair & Marine Fabrication, LLC through Defendant Henderson
Auctions on or about September 28, 2022, for One hundred fiftyfour thousand and 00/100
dollars ($154,000.00). On September 29, Defendants sent Seventysix thousand and 00/100
dollars ($76,000.000) by bank wire transfer to Henderson Auctions. On October 4, 2022,
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Defendants sent Seventyeight thousand and 00/100 dollars ($78,000.000) by bank wire
transfer to Henderson
On or about September 28, 2022, Jose Luis Leyva (“Leyva”), as
representative for Dimet, entered into a verbal contract with Trevor T. Davis (“Davis”),
President/CEO of Hydra and Consolidated whereby Consolidated would provide to Dimet
and crane use for a fixed price of $15,000.00. There were no additional storage
costs or deadlines for removal discussed at this time.
On or about October 11, 2022, Davis communicated via email with Levya
and stated that the Crane had to be removed on or before November 5, 2022.
On or about October 15, 2022, Davis sent a draft of an agreement via email
to Leyva stating that the Crane had to be removed the crane on or before November 5,
2022, with storage charges of Seven hundred fifty dollars and no cents ($750.00) per day.
Leyva did not sign the agreement.
On or about October 18, 2022, Leyva requested delivery of thirteen
counterweights that Davis took from the crane without the consent of Leyva. Davis
responded that he would deliver a portion of the counterweights with the rest delivered at
the end of the load. This interfered with the charging plans, causing additional costs for the
On or about October 21, 2022, Davis requested payment of the Fifteen
thousand dollars and Dimet requested that Davis issue an invoice. Davis replied that he
needed the payment of these services to him personally and not to the company. Dimet
responded that they needed the name on an invoice and bank details to be able to transfer
Page of
the money as requested.
On October 25, 2022, Davis sent via mail a reminder that the crane had to be
removed on November 5, 2022, and that after that date Hydra could not support with the
crane to load, with a $750 daily storage fee.
On October 26, 2022, Leyva sent an email to Kurt Sonnier, representative of
Henderson Auctions, requesting support to speak with Davis about his requests and asking
him to intercede to remove the crane on the terms initially agreed.
On or about November 2, 2022, Kurt Sonnier responded after more emails
asking for support and phone calls, stating that he could not support and that it was Davis’
On or about November 2, 2022, Leyva arrived at the Consolidated facility in
Port Arthur, Texas with a technician who traveled from Mexico, due to the lack of
availability of technicians in the area. After three weeks of efforts to start the crane, hiring
mechanics who specialized in this engine, and replacing several parts that were damaged,
the Crane engine still could not be started.
On or about November 7, 2022, Leyva sent an email to Davis requesting
support to disassemble the crane. Davis agreed and left it to the discretion of his yard
manager, Larry McGuire, to support the efforts. Dimet is willing to pay the costs for this
upport, but it has not been invoiced to date.
On or about November 8, 2022, Leyva emailed a signed Access and
Handling agreement to Davis.
On or about November 9, 2022, Davis sent an email stating that if there was
Page of
progress in the removal of the Crane, he could remove the collection of storage fees.
On or about November 9, 2022, Davis requested the personal cell phone
number of Leyva and wrote via WhatsApp, asking for the payment of the $ 15,000 in check
or cash. Leyva replied that Dimet could only make payment via wire transfer and with an
On or about November 21, 2022, support for disassembly work was
requested to Consolidated for tools and labor, which Dimet agreed to pay.
On December 9, 2022, Dimet notified Larry McGuire that work would have
to stop for the time being as Dimet had done everything possible and needed suppliers were
unavailable until after the new year began. Larry McGuire verbally commented that they
could help in some things during the remaining weeks of December and Dimet agreed to
be back at the beginning of the year 2023.
On or about January 2, 2023, Leyva returned to Port Arthur with the intention
of speaking in person and negotiating the terms that Davis imposed. Davis replied via email
January 3, 2023, that he did not have time and that Leyva should talk to his yard
manager, Larry McGuire.
On or about January 3, 2023, the crane technician hired by Dimet arrived to
work on the Crane, adding additional expenses for Dimet.
ut January 5, 2023, Dimet found another alternative to disassemble
the rest of the crane without the use of another crane. Davis requested payment and
commented that he could be interested in buying this crane.
nor about January 11, 2023, Davis sent an email demanding payment and
Page of
stating that Dimet would no longer be able to remove any part of the crane and would not
be able to enter Consolidated’s facilities after January 12, 2023. On this day Dimet had
arranged transport to be able to remove more parts of the crane, but access was denied.
Removing those parts would have achieved a definitive advance in the disassembly and
removal, but Davis refused.
On or about January 12, 2023, Davis sent an email demanding One hundred
eight thousand nine hundred seventy and 00/100 dollars ($108,970.00) for the initial
agreement, storage fees, and assistance in disassembling the Crane
On or about February 13, 2023, an Application for Temporary Restraining
Order was heard by Associate Judge O’Neil Williams, in the 240 Judicial District Court
of Fort Bend County, Texas, in Cause No. 23 300674. See Exhibit
In the above mentioned hearing, Defendants were present and represented by
In the above mentioned hearing, Judge Williams clearlyand unambiguously
Defendants to allow the removal of the crane by Plaintiffs and not interfere in any
way. Judge Williams further stated that Defendants had “no right” to dictate the manner in
which the cranes would be removed. See Exhibit
Judge Williams signed a Temporary Restraining Order on February 17, 2023.
See Exhibit
Rather than comply with the order, Defendants wrongfully removed this case
to Federal Court on February 20, 2023 and refused access to Plaintiffs See
of and in compliance with the Oral and written Orders Plaintiffs incurred
Page of
reasonable and necessary expenses in the amount of at least in procuring
personnel and equipmentfor the removal of the crane.(See
Defendants’ removal of this case to Federal court was wrongful as the
removal for diversity purposes is not proper due to the “forum defendant rule”, as the
ultimate owners of Hydra Subsea, LLC and Consolidated Ship Repair & Marine
Fabrication, LLC, are Texas residents and “citizens” for diversity purposes.
Removal likewise was wrongful on the basis of maritime jurisdiction, as the
alleged contract that incorporated maritime jurisdiction was not (1) a maritime contract or
(2) signed or agreed to by anyof the Plaintiffs.
Immediate and prompt remand may effectuate the purposes of Plaintiff, as
Plaintiff will then be able to file any amended applications for TROs and/or contempt
proceedings, as necessary.
In the alternative, Plaintiff requests a temporary restraining order by this
Court for so long as it takes to determine theimproper removal andremand matter.
In light of the foregoing, Plaintiffrequest a temporary restraining order:
a. Temporarily restraining and enjoining Defendants from disposing of,
destroying, removing, disassembling, discarding, selling, scrapping, or in
any way harming or affecting the Crane.
Requiring Plaintiffs to allow Defendants to access the Consolidated
facilities andremove the Crane.
Cc. Providing for other equitable relief.
Unless this Honorable Court immediately restrains Defendants, Plaintiffs
Page of
will suffer immediate and irreparable injury, for which there is no adequate remedy at law
to give Plaintiffs complete, final and equal relief. More specifically, Plaintiffs will show
the court the following:
a. The harm to Plaintiffs is
Preview
DIMET, S.A. DE C.V. Vv. 240 JUDICIAL DISTRICT CONSOLIDATED SHIP REPAIR & HYDRA SUBSEA, LLC AND JAH HENDERSON AUCTIONS OF FORT BEND Defendants., COUNTY, TEXAS Plaintiff, Dimet SA de CV, files the following documents previously filed in Federal Court, after removal, but before remand. Texas Bar No. 24075405 James C. Mosser Texas Bar No. 00789784 8100 Dallas Parkway courtdocuments@mosserlaw.com Lawyers for Plaintiffs 748 E. Van Buren Street, Suite A Brownsville, Texas 78520 Fax: 956-542-3225 I certify that a true and correct copy of the attached document was served according to Tex. R. Civ. P. 8, 21 and 21a electronically through the Texas Efiling system. /s/Nicholas D. Mosser Nicholas D. Mosser CONSOLIDATED SHIP REPAIR & HYDRA SUBSEA, LLC; and Pursuant to 28 U.S.C. §§1331, 1332, 1333, 1441, and 1446, and without waiving any rights, privileges, or defenses they may have, Defendants Consolidated Ship Repair & Marine Fabrication, LLC and Hydra Subsea, LLC (collectively, “Defendants”) remove the 1 On January 25, 2023, Plaintiffs , S.A. de C.V. and Jose Luis Leyva (collectively, “Plaintiffs”) filed their Original Petition and Application for Temporary Restraining Order against Defendants and Henderson Auctions in the 240 District Court 2. In accordance with 28 U.S.C. §1446 and the Local Rules of the United States District Court for the Southern District of Texas, Houston Division, a copy of the , together with all other pleadings, orders and the docket sheet are attached and incorporated by reference for all file this Notice of Removal within the 30day time period set This case is removable pursuant to 28 U.S.C. §144 there is complete diversity of citizenship between the parties and the amount in controversy exceeds $75,000.00. 28 U.S.C. 28 U.S.C. Plaintiff Jose Luis Leyva and Defendant Consolidated Ship Repair & Marine Fabrication, LLC entered into an Access and Handling Agreement governed by the General Maritime Law of the United States as a maritime contract As a result, this Court has Venue is proper Division of the Southern District of Texas All conditions and procedures for removal have been satisfied, including those set forth in 28 U.S.C. §1446 and the Local Rules of the United States District Court for the Southern District of Texas. list of counsel of record and an index of matters being filed are attached and incorporated by reference for all Pursuant to 28 U.S.C. §1446(d), Defendant simultaneously filing a true and A hearing was held on February 13, 2023 on Plaintiff's application for temporary restraining order, but no order has been entered as of the date of this removal as required by The Plaintiffs’ application is defective regardless as ffidavit was attached to Plaintiffs’ application as required by correct copy of this Notice of Removal with the Clerk of the District Court of County, Texas. A copy of th is attached For the foregoing reasons, and in conformance with the requirements set forth in 28 U.S.C. §1446(d) and the Local Rules of the United States District Court for the Southern District of Texas, Consolidated Ship Repair & Marine Fabrication, LLC and Hydra Subsea, LLC, remove this action from the District Court of Fort Bend ENSHAW I hereby certify that on this day of, 20, a true and correct copy of the forgoing was served upon the following counsel of record in accordance with the IGUEL TTORNEYS Filed 1/25/2023 5:20 PM Beverley McGrew Walker District Clerk Fort Bend County, Texas Ashley Alaniz No.23-DCV-300674 DIMET, S.A. DE C.V. AND JOSE LUIS IN THE DISTRICT COURT LEYVA Plaintiffs, Fort Bend County - 240th Judicial District Court Vv. JUDICIAL DISTRICT CONSOLIDATED SHIP REPAIR & MARINE FABRICATION, LLC, HYDRA SUBSEA, LLC AND HENDERSON AUCTIONS Defendants. OF FORT BEND COUNTY, TEXAS PLAINTIFFS’ ORIGINAL PETITION AND APPLICATION FOR TEMPORARY RESTRAINING ORDER PLAINTIFFS’ ORIGINAL PETITION TO THE HONORABLE JUDGE OF SAID COURT: NOW COME Dimet, S.A. de C.V. and Jose Luis Leyva, hereinafter called Plaintiffs, complaining of and about Consolidated Ship Repair & Marine Fabrication, LLC, Hydra Subsea, LLC and Henderson Auctions, hereinafter called Defendants, and for cause of action shows unto the Court the following: DISCOVERY CONTROL PLAN LEVEL Plaintiffs intend that discovery be conducted under Discovery Level 2. PARTIES AND SERVICE Plaintiff, Dimet, S.A. de C.V., is a corporation organized under the laws of Mexico. 3 Plaintiff, Jose Luis Leyva, is a resident of Mexico. 3 Defendant Consolidated Ship Repair & Marine Fabrication, LLC (“Consolidated”), a Limited Liability Partnership based in Texas, may be served with process pursuant to Section Page 1 of 13 17.022 of the Texas Civil Practice and Remedies Code by serving DRDA, PLLC, registered agent of said partnership, at 1120 Bay Area Blvd., Houston, Texas 77058. Service of said Defendant as described above can be effected by personal delivery. 4 Defendant Hydra Subsea, LLC (“Hydra”), a Limited Liability Partnership based in Texas, may be served with process pursuant to Section 17.022 of the Texas Civil Practice and Remedies Code by serving DRDA, PLLC, a registered of said partnership, at 1120 Bay Area Blvd., Houston, Texas 77058. Service of said Defendant as described above can be effected by personal delivery. 5 Defendant Henderson Auctions, a General Partnership based in Louisiana, may be served with process pursuant to Section 17.022 of the Texas Civil Practice and Remedies Code by serving J.A.H. Enterprises, Inc., a partner of said partnership, at 13340 Florida Blvd., Livingston, Louisiana 70754. Service of said Defendant as described above can be effected by personal delivery. JURISDICTION AND VENUE The subject matter in controversy is within the jurisdictional limits of this court. Plaintiffs seek: a. monetary relief of $250,000 or less and non-monetary relief. 8 This court has jurisdiction over the parties because Defendants are Texas residents. 9. Venue in Fort Bend County is proper in this cause under Section 15.002(3) of the Texas Civil Practice and Remedies Code because it is the county of Defendants’ principal office. FACTS 10. On or about September 27, 202 Plaintiffs viewed a Demag Crane (the “Crane”) at Consolidated’s facility at 8200 Old Yacht Club Road, Port Arthur, Texas 77642. The Crane, owned Page 2 of 13 by Consolidated, was listed for sale on Defendant Henderson Auctions’ website. In the listing for the Crane, Henderson Auctions stated that The Crane was “...fully operational crane just has a bad card that won’t let the load charts load up so its locking the machine out, the machine can be bypassed to operate.” Additionally, Larry McGuire, as representative for Consolidated, showed Leyva a video of the Crane with the engine running. The video of the operating crane was a significant factor in the decision to purchase the Crane. 11. On or about September 28, 2022, Plaintiffs contracted with Henderson Auctions for the purchase of the Crane for One hundred fifty-four thousand dollars and no cents ($154,000.00) 12. On or about September 28, 2022, Jose Leyva, as representative for Dimet, entered into a verbal contract with Trevor T. Davis (“Davis”), President/CEO of Hydra and Consolidated whereby Consolidated would provide to Dimet storage and crane use for a fixed price of $15,000.00. There were no additional storage costs or deadlines for removal discussed at this time. 13. On or about October 11, 2022, Davis communicated via email with Levya and stated that the Crane had to be removed on or before November 5, 2022. 14. On or about October 15, 2022, Davis sent a draft of an agreement via email to Leyva stating that the Crane had to be removed the crane on or before November 5, 2022, with storage charges of Seven hundred fifty dollars and no cents ($750.00) per day. Leyva did not sign the agreement. 15. On or about October 18, 2022, Leyva requested delivery of thirteen counterweights that Davis took from the crane without the consent of Leyva. Davis responded that he would deliver a portion of the counterweights with the rest delivered at the end of the load. This interfered with the charging plans, causing additional costs for the work. Page 3 of 13 16. On or about October 21, 2022, Davis requested payment of the Fifteen thousand dollars and Dimet requested that Davis issue an invoice. Davis replied that he needed the payment of these services to him personally and not to the company. Dimet responded that they needed the name on an invoice and bank details to be able to transfer the money as requested. 17. On October 25, 2022, Davis sent via mail a reminder that the crane had to be removed on November 5, 2022, and that after that date Hydra could not support with the crane to load, with a $750 daily storage fee. 18. On October 26, 2022, an email was sent to Kurt Sonnier, representative of Henderson Auctions, requesting support to speak with Davis about his requests and asking him to intercede to remove the crane on the terms initially agreed. 19. On or about November 2, 2022, Kurt Sonnier responded after more emails asking for support and phone calls that he did not answer, answering that he could not support and that it was Davis’ decision. 20. On or about November 2, 2022, Leyva arrived at the Consolidated facility in Port Arthur, Texas with a technician who traveled from Mexico, due to the lack of availability of technicians specialized in the crane in the area. After three weeks of efforts to start the crane, hiring mechanics who specialized in this engine, and replacing several parts that were damaged, the Crane engine still could not be started. 21. On or about November 7, 2022, Leyva sent an email to Davis requesting support to disassemble the crane. Davis agreed and left it to the discretion of his yard manager, Larry McGuire, to support the efforts. Dimet is willing to pay the costs for this support, but it has not been invoiced to date. 22. On or about November 8, 2022, Leyva emailed a signed Access and Handling Page 4 of 13 agreement to Davis. 23. On or about November 9, 2022, Davis sent an email stating that if there was progress in the removal of the Crane, he could remove the collection of storage fees. 24. On or about November 9, 2022, Davis requested the personal cell phone number of Leyva and wrote via WhatsApp, asking for the payment of the $ 15,000 in check or cash. Leyva replied that Dimet could only make payment via wire transfer and with an invoice. 25. On or about November 21, 2022, support for disassembly work was requested to Consolidated for tools and labor, which Dimet agreed to pay. 26. On December 9, 2022, Dimet notified Larry McGuire that we would have to stop work for the time being as Dimet had done everything possible and needed suppliers were unavailable until after the new year began. Larry McGuire verbally commented that they could help in some things during the remaining weeks of December and Dimet agreed to be back at the beginning of the year 2023. 27. On or about December 15, 2022, Davis sent an email detailing storage costs. 28. On or about December 27, 2022, Davis asked for a solid plan for the removal of what remains of the crane and for payment. 29. On or about December 27, 2022, Leyva responded that he would return as soon as possible and that the dates were very complicated due to lack to availability of workers. 30. On or about January 2, 2023, Leyva returned to Port Arthur with the intention of speaking in person and negotiating the terms that Davis imposed. Davis replied via email on January 3, 2023, that he did not have time and that we should talk to his yard manager, Larry McGuire. 31. On or about January 3, 2023, the crane technician arrived to work on the Crane, Page 5 of 13 adding additional expenses for Dimet. 32. On or about January 4, 2023, Leyva spoke with Larry McGuire and expressed his concerns and the alternative of taking a crane from Dimet’s property located in Houston to finish the work. McGuire replied that he could not help and that these issues had to be discussed with Davis. 33. Davis replied on or about January 4, 2023, that some requirements had to be met in order to carry the crane. 34. On or about January 5, 2023, Dimet found another alternative to disassemble the rest of the crane without the use of another crane. Davis requested payment and commented that he could be interested in buying this crane. 35. On or about January 7, 2023, Davis sent an email demanding payment. 36. On or about January 11, 2023, Davis sent an email demanding payment and stating that Dimet would no longer be able to remove any part of the crane and would not be able to enter Consolidated’s facilities after January 12, 2023. On this day Dimet had arranged transport to be able to remove more parts of the crane, but access was denied. Removing those parts would have achieved a definitive advance in the disassembly and removal but Davis refused. 37. On or about January 12, 2023, Davis sent an email demanding One hundred eight thousand nine hundred seventy dollars and no cents ($108,970.00) for the initial agreement, storage fees, and assistance in disassembling the Crane. CLAIM FOR BREACH OF CONTRACT 38. Plaintiffs hereby incorporate by reference all facts and circumstances set forth under the foregoing paragraphs. 39. All conditions precedent to the performance of said Defendants under the contracts Page 6 of 13 have been met. 40. The contractual obligations of Plaintiffs have been fully performed. 41. Defendants failed to perform their contractual obligations, specifically, delivering the Crane was not fully functional as stated on Defendant Henderson Auctions’ website and as represented by the video presented by Larry McGuire. 42. The breach was material as Defendants substantially failed to perform a material obligation or duty required by the contracts, namely, to deliver a fully functioning crane. 43. Defendants’ breach of contract described hereinabove has injured Plaintiffs, specifically, Plaintiffs incurred actual damages of the purchase price for the Crane that was not functioning and the cost of hiring a Crane technician to attempt to repair the Crane and further allege that such injuries were a natural, probable, and foreseeable consequence of said Defendant’s breach. CLAIM FOR NEGLIGENT MISREPRESENTATION 44 Plaintiffs hereby incorporate by reference all facts and circumstances set forth under the foregoing paragraphs. 45. Plaintiffs claim that Defendants’ actions constitute negligent misrepresentation. To prevail on a cause of action for negligent misrepresentation, a plaintiff must show: (1) a representation made by a defendant in the course of its business or in a transaction in which it has a pecuniary interest; (2) the representation conveyed false information for the guidance of others in their business; (3) the defendant did not exercise reasonable care or competence in obtaining or communicating the information; and (4) the plaintiff suffers pecuniary loss by justifiably relying on the representation. JPMorgan Chase Bank, N.A. v. Orca Assets G.P., LLC, 546 S.W.3d, 648 (Tex. 2018). Page 7 of 13 46. Defendants falsely claimed that they would deliver a functioning crane to Plaintiffs, resulting in lost income to Plaintiffs. CLAIM FOR COMMON LAW FRAUD 47. Plaintiffs hereby incorporate by reference all facts and circumstances set forth under the foregoing paragraphs. 48. Plaintiffs would show that Defendants engaged in fraudulent inducement. A fraudulent-inducement claim requires proof that: (1) the defendant made a material misrepresentation; (2) the defendant knew at the time that the representation was false or lacked knowledge of its truth; (3) the defendant intended that the plaintiff should rely or act on the misrepresentation; (4) the plaintiff relied on the misrepresentation; and (5) the plaintiff's reliance on the misrepresentation caused injury. International Business Machines Corporation v. Lufkin Industries, LLC, 573 8.W.3d 224 (Tex. 2019). 49. Plaintiffs claim that Defendants made materially false representations to Plaintiffs with the knowledge of their falsity or with reckless disregard of the truth with the intention that such representations be acted upon by Plaintiffs, and that Plaintiffs relied on these representations to their detriment. 50. Plaintiffs would further show that Defendants concealed or failed to disclose material facts within the knowledge of Defendants, that Defendants knew that Plaintiffs did not have knowledge of the same and did not have equal opportunity to discover the truth, and that Defendants intended to induce Plaintiffs to enter into the transaction made the basis of this suit by such concealment or failure to disclose. 3i. As a proximate result of such fraud, Plaintiffs sustained the damages described more fully hereinbelow. Page 8 of 13 DAMAGES 52. As a direct and proximate result of the occurrence made the basis of this lawsuit, Plaintiffs, Dimet, S.A. de C.V. and Jose Luis Leyva, were caused to incur the following damages: @) Out-of-pocket expenses; ) Loss of use; and © Past mental anguish 53. Plaintiffs would show that Defendants’ conduct was done knowingly and intentionally, and as such, Plaintiffs are entitled to recover from Defendants two times that portion of its actual damages which do not exceed $1,000.00 and up to three times the amount of actual damages suffered by Plaintiffs, for which Plaintiffs seek from Defendants, jointly and severally. 54. Plaintiffs allege that the conduct of Defendants was with malice and in conscious disregard of Plaintiffs’ rights and therefore, Plaintiffs are entitled to exemplary damages, not to exceed Two hundred fifty thousand dollars (250,000.00). ATTORNEY’S FEES 55. Request is made for ali costs and reasonable and necessary attorney's fees incurred by or on behalf of Plaintiffs herein, including all fees necessary in the event of an appeal of this cause to the Court of Appeals and the Supreme Court of Texas, as the Court deems equitable and just, as provided by Chapter 38 of the Texas Civil Practice and Remedies Code and Section 17.50(d) of the Texas Business and Commerce Code. Page 9 of 13 PLAINTIFFS' APPLICATION FOR TEMPORARY RESTRAINING ORDER AND TEMPORARY INJUNCTION 56. In light of the above-described facts, Plaintiffs seek recovery from Defendants. 37. Plaintiffs are likely to succeed on the merits of this lawsuit because Plaintiffs can prove each and every element of its causes of action against Defendants. However, even showing that it is likely to prevail on a single cause of action would be sufficient to show that it would be able to prevail on the merits and the relief requested should be granted. 58. Unless this Honorable Court immediately restrains Defendants, Plaintiffs will suffer immediate and irreparable injury, for which there is no adequate remedy at law to give Plaintiffs complete, final and equal relief. More specifically, Plaintiffs will show the court the following: a. The harm to Plaintiffs is imminent because Trevor T. Davis, President/CEO of Defendants Hydra and Consolidated has stated, “If we do not hear from you by January 17th, 2023, we will dispose of the crane immediately. We have a scrap company standing by to cut it up.” and “Pay me or I’m done screwing around with these bullshit games you are playing.” b. This imminent harm will cause Plaintiffs irreparable injury in that Defendants are threatening to dispose of the Crane that is owned by Plaintiffs. ¢. There is no adequate remedy at law which will give Plaintiffs complete, final and equal relief because once Defendants have destroyed the Crane, any and all evidence of intentional or grossly negligent misrepresentations would have been destroyed or otherwise compromised, and would significantly impact Plaintiff's prosecution of this matter. Page 10 of 13 BOND 59. Plaintiffs are willing to post a reasonable temporary restraining order bond and request the court to set such bond. REMEDY 60. Plaintiffs have met Plaintiffs’ burden by establishing each element which must be present before injunctive relief can be granted by this court, therefore Plaintiffs are entitled to the requested temporary restraining order. 61. Plaintiffs request the court to restrain Defendants from disposing of, destroying, removing, disassembling, discarding, selling, scrapping, or in any other way harming or affecting the Crane. 62. It is essential that the court act immediately, prior to giving notice to Defendants and a hearing on the matter because Defendant has threatened immediate action to dispose of the Crane, 63. In order to preserve the status quo during the pendency of this action, Plaintiffs request that Defendants be temporarily enjoined from performing any action that would affect the Crane. PRAYER WHEREFORE, PREMISES CONSIDERED, Plaintiffs, Dimet, S.A. de C.V. and Jose Luis Leyva, respectfully pray that: a. Defendants be cited to appear and answer herein, and that upon a final hearing of the cause, judgment be entered for the Plaintiffs against Defendants, jointly and severally, for damages in an amount within the jurisdictional limits of the Court; together with pre- judgment interest at the maximum rate allowed by law; post-judgment interest at the legal Page 11 of 13 rate, costs of court; b. A temporary restraining order will issue without notice to Defendants, restraining Defendants, Defendants’ officers, agents, servants, employees, agents, servants, successors and assigns, and attorneys from directly or indirectly accessing or affecting the Crane; ¢, The Court sets a reasonable bond for the temporary restraining order; d. After notice and hearing, a temporary injunction will issue enjoining and restraining Defendants, Defendants’ officers, agents, servants, employees, successors and assigns, and attorneys from directly or indirectly accessing or affecting the Crane; €. After trial on the merits, the Court permanently enjoin Defendants, Defendants’ officers, agents, servants, employees, successors and assigns, and attorneys from directly or indirectly accessing or affecting the Crane; f. such other and further relief to which Plaintiffs may be entitled at law or in equity. Respectfully submitted, SAN MIGUEL ATTORNEYS, P.C. 4 By: Alan Ray San Miguel Texas Bar No. 24072323 Paul Murphy Texas Bar No. 00797128 Grant McEwen Texas Bar No. 24062880 Email: service@sanmiguel.law 25211 Grogans Mill Road, Suite 110 The Woodlands, Texas 77380 Tel: (713) 795-5299 Fax: (713) 554-0611 Attorneys for Plaintiffs Page 12 of 13 Page 13 of 13 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. Envelope ID: 72403335 Status as of 2/3/2023 9:18 AM CST Associated Case Party: Dimet, S.A. de C.V. Name BarNumber | Email TimestampSubmitted Status Alan RaySan Miguel service@sanmiguel.law | 2/3/2023 9:17:54 AM SENT Associated Case Party: JoseLuisLeyva Name BarNumber | Email TimestampSubmitted Status Alan RaySan Miguel service@sanmiguel.law | 2/3/2023 9:17:54 AM SENT 23-DCV-300674 240th Judicial District Court Dimet, S.A. de C.V. and Jose Luis Leyva V. Consolidated Ship Repair & Marine Fabrication, LLC, Hydra Subsea, LLC and Henderson Auctions OFFICER’S OR AUTHORIZED PERSON’S RETURN Came to hand on the day of » 20_, at o'clock __M. Executed at , Within the County of , at o'clock __M. on the day of 20__, by delivering to the within named in person, a true copy of this citation together with the accompanying copy of the petition, having first attached such copy of such petition to such copy of citation and endorsed on such copy of citation the date of delivery. Total fee for serving citation at $80.00 each $ Name of Officer or Authorized Person County, Texas B ; Signature of Deputy or Authorized Person *State day and hour and place of serving each person. mS SS SSS SSS SS a a Se ee et COMPLETE IF YOU ARE A PERSON OTHER THAN A SHERIFF, CONSTABLE, OR CLERK OF THE COURT. in accordance with Rule 107: The officer or authorized person who serves, or attempts to serve, a citation shall sign the retum. The signature is not required to be verified. If the return is signed by a person other than a sheriff, constable, or the clerk of the court, the retum shail be signed under penalty of perjury and contain the following statement: “My name is (First, Middle, Last) my date of birth is. , and my address is (Street, City, Zip) | DECLARE UNDER PENALTY OF PERJURY THAT THE FOREGOING IS TRUE AND CORRECT. Executed in County, State of , on the day of Declarant/ Authorized Process Server (Id # & expiration of certification) SERVICE Citation issued to Consolidated Ship Repair & Marine Fabrication, LLC on 2/3/2023. SERVICE FEE NOT COLLECTED BY DISTRICT CLERK THE STATE OF TEXAS Delivered __ day CITATION of, nd _=th> —_ 2083 TO: CONSOLIDATED SHIP REPAIR & MARINE FABRICATION, LLC REGISTERED AGENT, DRDA PLLC @ 1120 BAY AREA BLVD HOUSTON TX 77058 NOTICE: You have been sued. You may employ an attorney. If you or your attorney do not file a written answer with the clerk who issued this citation by 10:00 a.m. on Monday next following the expiration of twenty days after you were served this citation and PLAINTIFFS" ORIGINAL PETITION AND APPLICATION FOR TEMPORARY RESTRAINING ORDER filed on January 25, 2023, a default judgment may be taken against you. In addition to filing a written answer with the clerk, you may be required to make initial disclosures to the other parties of this suit. These disclosures generally must be made no later than 30 days after you file your answer with the clerk. Find out more at TexasLawHelp.org. The case is presently pending before the 240TH JUDICIAL DISTRICT COURT of Fort Bend County sitting in Richmond, Texas. It bears cause number 23-DCV-300674 and is styled: DIMET, S.A. DE C.V. AND JOSE LUIS LEYVA V. CONSOLIDATED SHIP REPAIR & MARINE FABRICATION, LLC, HYDRA SUBSEA, LLC AND HENDERSON AUCTIONS The name and address of the attorney for PLAINTIFF(S) is: ALAN RAY SAN MIGUEL SAN MIGUEL ATTORNEYS PC 25211 GROGANS MILL ROAD SUITE 110 THE WOODLANDS TX 77380 713-795-5299 The nature of the demands of said PLAINTIFF(S) is shown by a true and correct copy of the PLAINTIFFS’ ORIGINAL PETITION AND APPLICATION FOR TEMPORARY RESTRAINING ORDER accompanying this citation and made a part hereof. If this Citation is not served, it shall be returned unserved. Issued under my hand and seal of said Court, at Richmond, Texas, on this the 3rd day of February, 2023. BEVERLEY MCGREW WALKER, DISTRICT CLERK FORT BEND COUNTY, TEXAS Physical Address: 1422 Eugene Heimann Circle, Room 31004 Richmond, Texas 77469 Mailing Address: ¥ s on 1c Ou NS.Paeessenta ef 301 Jackson Street, Room 101 Richmond, Texas 77% By: 2 xe 2= Deputy District Clerk VANESSA VASQUEZ Sox Telephone: (281) 344-3959 “Sire Gia “etreevaw a SERVICE JOSE LUIS LEYVA, CONSOLIDATED SHIP REPAIR & HYDRA SUBSEA, LLC; and IGUEL TTORNEYS JOSE LUIS LEYVA, CONSOLIDATED SHIP REPAIR & HYDRA SUBSEA, LLC; and 1 Original Petition and Application for Temporary Restraining Order 2. Citation to Consolidated Ship Repair & Marine Fabrication, LLC 3. Docket Sheet EXHIBIT D CAUSE NO. DCV DIMET, S.A. DE C.V. and IN THE DISTRICT COURT OF JOSE LUIS LEYVA, Plaintiff VS. FORT BEND COUNTY, TEXAS CONSOLIDATED SHIP REPAIR & MARINE FABRICATION, LLC; HYDRA SUBSEA, LLC; and HENDERSON AUCTIONS Defendants DISTRICT COURT NOTICE OF FILING OF NOTICE OF REMOVAL Defendants Consolidated Ship Repair & Marine Fabrication, LLC and Hydra Subsea, LLC hereby notif this Court of the removal of this cause to the United States District Court for the Southern District of Texas Houston Division February 2 , 2023 A copy of the Notice of Removal that has been filed with the clerk of the United State District Court for the Southern District of Texas Houston Division is attached to this notice as Exhibit A Respectfully submitted, RENSHAW, PC /s/ Justin W.R. Renshaw Justin W. R. Renshaw Texas Bar No. 24013392 2900 Weslayan, Su Houston, Texas 77027 Phone: Fax: 713.400.9006 justin@renshaw law.com Attorney for Defendants Consolidated Ship Repair & Marine Fabrication, LLC and Hydra Subsea, LLC CERTIFICATE OF SERVICE I hereby certify that I forwarded a true and correct copy of the foregoing to all counsel of record on this day of February, 2023 Email: service@sanmiguel.law Alan Ray San Miguel IGUEL TTORNEYS P.C. 25211 Grogans Mills Road, Suite 110 The Woodlands, Texas 77380 /s/ Justin W.R. Renshaw Justin W. R. Renshaw IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION DIMET, S.A. DE C.V. and JOSE LUIS § LEYVA, Plaintiffs C. A. NO. 4:23-cv 00601 CONSOLIDATED SHIP REPAIR & § MARINE FABRICATION, LLC; § HYDRA SUBSEA, LLC; AND HENDERSON AUCTIONS, Defendants PLAINTIFFS’ APPLICATION FOR TEMPORARY RESTRAINING ORDER WITH EQUITABLE RELIEF Pursuant to Rule 65(b) of the Federal Rules of Civil Procedure and Local Rule 65.1(a), Plaintiffs Dimet, S.A. de C.V. and Jose Luis Leyva, hereby appl to this Court for a temporary restraining order ("TRO") with other equitable relief. In support of the motion, Plaintiffs state as follows: Plaintiffs bring this action to halt Defendants threat to disassemble and dispose ofa Crane owned by Defendants. Plaintiffs purchased a Demag Crane (the “Crane”) from Defendant Consolidated Ship Repair & Marine Fabrication, LLC through Defendant Henderson Auctions on or about September 28, 2022, for One hundred fiftyfour thousand and 00/100 dollars ($154,000.00). On September 29, Defendants sent Seventysix thousand and 00/100 dollars ($76,000.000) by bank wire transfer to Henderson Auctions. On October 4, 2022, Page of Defendants sent Seventyeight thousand and 00/100 dollars ($78,000.000) by bank wire transfer to Henderson On or about September 28, 2022, Jose Luis Leyva (“Leyva”), as representative for Dimet, entered into a verbal contract with Trevor T. Davis (“Davis”), President/CEO of Hydra and Consolidated whereby Consolidated would provide to Dimet and crane use for a fixed price of $15,000.00. There were no additional storage costs or deadlines for removal discussed at this time. On or about October 11, 2022, Davis communicated via email with Levya and stated that the Crane had to be removed on or before November 5, 2022. On or about October 15, 2022, Davis sent a draft of an agreement via email to Leyva stating that the Crane had to be removed the crane on or before November 5, 2022, with storage charges of Seven hundred fifty dollars and no cents ($750.00) per day. Leyva did not sign the agreement. On or about October 18, 2022, Leyva requested delivery of thirteen counterweights that Davis took from the crane without the consent of Leyva. Davis responded that he would deliver a portion of the counterweights with the rest delivered at the end of the load. This interfered with the charging plans, causing additional costs for the On or about October 21, 2022, Davis requested payment of the Fifteen thousand dollars and Dimet requested that Davis issue an invoice. Davis replied that he needed the payment of these services to him personally and not to the company. Dimet responded that they needed the name on an invoice and bank details to be able to transfer Page of the money as requested. On October 25, 2022, Davis sent via mail a reminder that the crane had to be removed on November 5, 2022, and that after that date Hydra could not support with the crane to load, with a $750 daily storage fee. On October 26, 2022, Leyva sent an email to Kurt Sonnier, representative of Henderson Auctions, requesting support to speak with Davis about his requests and asking him to intercede to remove the crane on the terms initially agreed. On or about November 2, 2022, Kurt Sonnier responded after more emails asking for support and phone calls, stating that he could not support and that it was Davis’ On or about November 2, 2022, Leyva arrived at the Consolidated facility in Port Arthur, Texas with a technician who traveled from Mexico, due to the lack of availability of technicians in the area. After three weeks of efforts to start the crane, hiring mechanics who specialized in this engine, and replacing several parts that were damaged, the Crane engine still could not be started. On or about November 7, 2022, Leyva sent an email to Davis requesting support to disassemble the crane. Davis agreed and left it to the discretion of his yard manager, Larry McGuire, to support the efforts. Dimet is willing to pay the costs for this upport, but it has not been invoiced to date. On or about November 8, 2022, Leyva emailed a signed Access and Handling agreement to Davis. On or about November 9, 2022, Davis sent an email stating that if there was Page of progress in the removal of the Crane, he could remove the collection of storage fees. On or about November 9, 2022, Davis requested the personal cell phone number of Leyva and wrote via WhatsApp, asking for the payment of the $ 15,000 in check or cash. Leyva replied that Dimet could only make payment via wire transfer and with an On or about November 21, 2022, support for disassembly work was requested to Consolidated for tools and labor, which Dimet agreed to pay. On December 9, 2022, Dimet notified Larry McGuire that work would have to stop for the time being as Dimet had done everything possible and needed suppliers were unavailable until after the new year began. Larry McGuire verbally commented that they could help in some things during the remaining weeks of December and Dimet agreed to be back at the beginning of the year 2023. On or about January 2, 2023, Leyva returned to Port Arthur with the intention of speaking in person and negotiating the terms that Davis imposed. Davis replied via email January 3, 2023, that he did not have time and that Leyva should talk to his yard manager, Larry McGuire. On or about January 3, 2023, the crane technician hired by Dimet arrived to work on the Crane, adding additional expenses for Dimet. ut January 5, 2023, Dimet found another alternative to disassemble the rest of the crane without the use of another crane. Davis requested payment and commented that he could be interested in buying this crane. nor about January 11, 2023, Davis sent an email demanding payment and Page of stating that Dimet would no longer be able to remove any part of the crane and would not be able to enter Consolidated’s facilities after January 12, 2023. On this day Dimet had arranged transport to be able to remove more parts of the crane, but access was denied. Removing those parts would have achieved a definitive advance in the disassembly and removal, but Davis refused. On or about January 12, 2023, Davis sent an email demanding One hundred eight thousand nine hundred seventy and 00/100 dollars ($108,970.00) for the initial agreement, storage fees, and assistance in disassembling the Crane On or about February 13, 2023, an Application for Temporary Restraining Order was heard by Associate Judge O’Neil Williams, in the 240 Judicial District Court of Fort Bend County, Texas, in Cause No. 23 300674. See Exhibit In the above mentioned hearing, Defendants were present and represented by In the above mentioned hearing, Judge Williams clearlyand unambiguously Defendants to allow the removal of the crane by Plaintiffs and not interfere in any way. Judge Williams further stated that Defendants had “no right” to dictate the manner in which the cranes would be removed. See Exhibit Judge Williams signed a Temporary Restraining Order on February 17, 2023. See Exhibit Rather than comply with the order, Defendants wrongfully removed this case to Federal Court on February 20, 2023 and refused access to Plaintiffs See of and in compliance with the Oral and written Orders Plaintiffs incurred Page of reasonable and necessary expenses in the amount of at least in procuring personnel and equipmentfor the removal of the crane.(See Defendants’ removal of this case to Federal court was wrongful as the removal for diversity purposes is not proper due to the “forum defendant rule”, as the ultimate owners of Hydra Subsea, LLC and Consolidated Ship Repair & Marine Fabrication, LLC, are Texas residents and “citizens” for diversity purposes. Removal likewise was wrongful on the basis of maritime jurisdiction, as the alleged contract that incorporated maritime jurisdiction was not (1) a maritime contract or (2) signed or agreed to by anyof the Plaintiffs. Immediate and prompt remand may effectuate the purposes of Plaintiff, as Plaintiff will then be able to file any amended applications for TROs and/or contempt proceedings, as necessary. In the alternative, Plaintiff requests a temporary restraining order by this Court for so long as it takes to determine theimproper removal andremand matter. In light of the foregoing, Plaintiffrequest a temporary restraining order: a. Temporarily restraining and enjoining Defendants from disposing of, destroying, removing, disassembling, discarding, selling, scrapping, or in any way harming or affecting the Crane. Requiring Plaintiffs to allow Defendants to access the Consolidated facilities andremove the Crane. Cc. Providing for other equitable relief. Unless this Honorable Court immediately restrains Defendants, Plaintiffs Page of will suffer immediate and irreparable injury, for which there is no adequate remedy at law to give Plaintiffs complete, final and equal relief. More specifically, Plaintiffs will show the court the following: a. The harm to Plaintiffs is