On October 07, 2014 a
Motion,Ex Parte
was filed
involving a dispute between
Bakercorp,
Bakercorp Inc,
United Rentals,
and
201458317, Southwestern Biofuels Llc,
Kingston, Jacob,
Southwestern Biofuels Llc,
Washakie Holdings Llc,
for CONVERSION
in the District Court of Harris County.
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CAUSE NO. 2014-58317
BAKERCORP, § IN THE DISTRICT COURT OF
§
Plaintiff §
§
§
§ HARRIS COUNTY TEXAS
SOUTHWESTERN BIOFUELS, LLC, §
WASHAKIE HOLDINGS LLC, and §
JACOB KINGSTON, §
§
Defendants. § 127 JUDICIAL DISTRICT
PLAINTIFF’S AMENDED MOTION FOR ENTRY ONTO PROPERTY
TO THE HONORABLE JUDGE OF THIS COURT:
Pursuant to Texas Rule of Civil Procedure 196.7, Plaintiff, BAKERCORP, requests that
the court enter an order permitting it to enter on e property described below.
The Property
The common street address of the property is 9400 Needlepoint Road, Baytown, Texas
(“Needlepoint property”). Based on deposition testimony in this case, Plaintiff believes the
Needlepoint property is fenced and access to the same is controlled by means of a locked gate.
Purpose of the Entry
In the underlying case, Plaintiff alleges that Defendants have wrongfully exercised
possession and control of eight (8) tanks and related equipment owned by it.
In deposition testimony and in statements to the court, Southwestern Biofuels, LLC
(“SWB”) has represented that two the eight tanks have been emptied. Plaintiff has not been able
to remove the allegedly empty tanks due to the fact that SWB has made dismissal of the claims
against it, with prejudice, a condition to removal.
Plaintiff requests that the court take judicial notice of Exhibit 29 to its motion to amend.
Prior to filing this motion, Plaintiff asked for an opportunity to inspect and, if the tanks
were roadworthy, to remove the allegedly empty tanks without condition. Exhibit A.2
Defendants have not responded to that request. Id.
Plaintiff needs access to the tanks for purposes of trial preparation.
The team designated to enter the property will consist of Steve Gassaway, the Branch
Operations Manager at Plaintiff’s office in LaPorte, Texas, and two employees from the same
office. The purpose of the entry will be to locate and inspect the tanks, to confirm which tanks, if
any, are empty, to determine their condition, and to determine if they are roadworthy. The team
may document their activity with photographs.
Date and Time of Inspection
Plaintiff requests entry on October 9, 2017 beginning at 9:00 a.m. Plaintiff anticipates
that the inspection will not take more than three (3) hours once entry is obtained.
Respectfully submitted:
By: /s/ Tom Kiehnhoff
Tom Kiehnhoff
Texas State Bar No: 24031311
Email: tkiehnhoff@portnerbond.com
PORTNER ♦ BOND, PLLC
1905 Calder Avenue
Beaumont, TX 77701
(409) 838-4444 – Telephone
(409) 554-0240 – Facsimile
ATTORNEYS FOR PLAINTIFF
2
Exhibit 29 to plaintiff’s motion to amend was an attachment to the email.
2
CERTIFICATE OF CONFERENCE
The undersigned states that on September 20, 2017, he sent counsel for Defendants the
email attached as Exhibit A to this motion and that he has received no response to the same. The
undersigned further states that on September 26, 2017, the undersigned received an email in
which counsel for Southwestern Biofuels, LLC wrote, “We will agree to allow you to enter
property.” A copy of the email is attached as Exhibit B. The undersigned further states that on
September 27, 2017 and again on September 28, 2017 he sent emails to counsel for the
defendants requesting that they execute a Rule 11 to confirm their consent. No response has
been received to those emails which are attached as Exhibits C and D.
/s/ Tom Kiehnhoff
Tom Kiehnhoff
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the above was served by fax, email and
electronically through the electronic filing manager on counsel at the addresses below on the 3rd
day of October, 2017.
Timothy J. Henderson
6300 West Loop South, Suite 280
Bellaire, Texas 77401-2905
713.668.5697 (fax)
Email: timjhenderson@msn.com
Baltazar Salazar
8814 Brae Acres
Houston, TX 77074
281-749-8104 (fax)
Email: Balsalazar@sbcglobal.net
/s/ Tom Kiehnhoff
Tom Kiehnhoff
3
Document Filed Date
October 03, 2017
Case Filing Date
October 07, 2014
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CAUSE NO. 2014-58317 BAKERCORP, § IN THE DISTRICT COURT OF § Plaintiff § § § § HARRIS COUNTY TEXAS SOUTHWESTERN BIOFUELS, LLC, § WASHAKIE HOLDINGS LLC, and § JACOB KINGSTON, § § Defendants. § 127 JUDICIAL DISTRICT PLAINTIFF’S AMENDED MOTION FOR ENTRY ONTO PROPERTY TO THE HONORABLE JUDGE OF THIS COURT: Pursuant to Texas Rule of Civil Procedure 196.7, Plaintiff, BAKERCORP, requests that the court enter an order permitting it to enter on e property described below. The Property The common street address of the property is 9400 Needlepoint Road, Baytown, Texas (“Needlepoint property”). Based on deposition testimony in this case, Plaintiff believes the Needlepoint property is fenced and access to the same is controlled by means of a locked gate. Purpose of the Entry In the underlying case, Plaintiff alleges that Defendants have wrongfully exercised possession and control of eight (8) tanks and related equipment owned by it. In deposition testimony and in statements to the court, Southwestern Biofuels, LLC (“SWB”) has represented that two the eight tanks have been emptied. Plaintiff has not been able to remove the allegedly empty tanks due to the fact that SWB has made dismissal of the claims against it, with prejudice, a condition to removal. Plaintiff requests that the court take judicial notice of Exhibit 29 to its motion to amend. Prior to filing this motion, Plaintiff asked for an opportunity to inspect and, if the tanks were roadworthy, to remove the allegedly empty tanks without condition. Exhibit A.2 Defendants have not responded to that request. Id. Plaintiff needs access to the tanks for purposes of trial preparation. The team designated to enter the property will consist of Steve Gassaway, the Branch Operations Manager at Plaintiff’s office in LaPorte, Texas, and two employees from the same office. The purpose of the entry will be to locate and inspect the tanks, to confirm which tanks, if any, are empty, to determine their condition, and to determine if they are roadworthy. The team may document their activity with photographs. Date and Time of Inspection Plaintiff requests entry on October 9, 2017 beginning at 9:00 a.m. Plaintiff anticipates that the inspection will not take more than three (3) hours once entry is obtained. Respectfully submitted: By: /s/ Tom Kiehnhoff Tom Kiehnhoff Texas State Bar No: 24031311 Email: tkiehnhoff@portnerbond.com PORTNER ♦ BOND, PLLC 1905 Calder Avenue Beaumont, TX 77701 (409) 838-4444 – Telephone (409) 554-0240 – Facsimile ATTORNEYS FOR PLAINTIFF 2 Exhibit 29 to plaintiff’s motion to amend was an attachment to the email. 2 CERTIFICATE OF CONFERENCE The undersigned states that on September 20, 2017, he sent counsel for Defendants the email attached as Exhibit A to this motion and that he has received no response to the same. The undersigned further states that on September 26, 2017, the undersigned received an email in which counsel for Southwestern Biofuels, LLC wrote, “We will agree to allow you to enter property.” A copy of the email is attached as Exhibit B. The undersigned further states that on September 27, 2017 and again on September 28, 2017 he sent emails to counsel for the defendants requesting that they execute a Rule 11 to confirm their consent. No response has been received to those emails which are attached as Exhibits C and D. /s/ Tom Kiehnhoff Tom Kiehnhoff CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the above was served by fax, email and electronically through the electronic filing manager on counsel at the addresses below on the 3rd day of October, 2017. Timothy J. Henderson 6300 West Loop South, Suite 280 Bellaire, Texas 77401-2905 713.668.5697 (fax) Email: timjhenderson@msn.com Baltazar Salazar 8814 Brae Acres Houston, TX 77074 281-749-8104 (fax) Email: Balsalazar@sbcglobal.net /s/ Tom Kiehnhoff Tom Kiehnhoff 3