Preview
no. O7-42F8]
Wo
IN THE COURT OF APPEALS
FOR THE —
SUPREME JUDICIAL DISTRICT
AT HOUSTON
IN RE WILLIAMS GAS PROCESSING COMPANY,
N/K/A WILLIAMS FIELD SERVICES COMPANY, LLC,
Relator.
PETITION FOR WRIT OF MANDAMUS
FILED
Theresa Chan:
District Clerk
oF Q 6 an
Barry Abrams Time:
State Bar No. 09822790
Jack W. Higdon
State Bar No. 24007360
ABRAMS SCOTT & BICKLEY, L.L.P.
700 Louisiana, Suite 4000
Houston, Texas 77002
Telephone: (713) 22&-6601
Facsimile: (713) 228-6605
ATTORNEYS FOR RELATOR
WILLIAMS GAS PROCESSING COMPANY,
N/K/A WILLIAMS FIELD SERVICES
ComPaANy, LLC
ORAL ARGUMENT REQUESTED
RECO RDER'S MEMORANDUM
“is instrument is of pooringquality
at the time of imag
NO.
IN THE COURT OF APPEALS
FOR THE
SUPREME JUDICIAL DISTRICT
AT HOUSTON
IN RE WILLIAMS GAS PROCESSING COMPANY,
N/K/A WILLIAMS FIELD SERVICES COMPANY, LLC,
Relator.
PETITION FOR WRIT OF MANDAMUS
Barry Abrams
State Bar No. 00822700
Jack W. Higdon
State Bar No. 24007360
ABRAMS SCOTT & BICKLEY, L.L.P.
700 Louisiana, Suite 4000
Houston, Texas 77002
Telephone: (713) 228-6601
Facsimile: (713) 228-6605
ATTORNEYS FOR RELATOR
WILLIAMS GAS PROCESSING COMPANY,
N/K/A WILLIAMS FIELD SERVICES
Company, LLC
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
Relator Williams Gas Processing Company, n/k/a Williams
Field Services Company, LLC
Counsel for Relators: Barry Abrams
State Bar No. 00822700
Jack W. Higdon
State Bar No. 24007360
ABRAMS SCOTT & BICKLEY, L.L.P.
700 Louisiana, Suite 4000
Houston, Texas 77002
Telephone: (713) 228-6601
Facsimile: (713) 228-6605
Stephen L. DeGiusti
(admitted pro hac vice below)
CROWE & DUNLEVY, A PROFESSIONAL CORPORATION
20 North Broadway, Suite 1800
Oklahoma City, Oklahoma 73102-8273
Telephone: (405) 235-7784
Facsimile: (405) 272-5224
Real Party in Interest Jonah Gas Gathering Company
Counsel for Real Party in Thomas W. Paterson
Interest State Bar No. 15571500
Carolyn P. Courville
State Bar No. 24007042
SUSMAN GODFREY L.L.P.
1000 Louisiana Street, Suite 5100
Houston, Texas 77002-5096
Telephone: (713) 651-9366
Facsimile: (713) 654-6666
Respondent Hon. David J. Bernal
Judge, 281" District Court of Harris County, Texas
TABLE OF CONTENTS
Page
IDENTITY OF PARTIES AND COUNSEL
INDEX OF AUTHORITIES ML
I STATEMENT OF THE CASE
U STATEMENT OF JURISDICTION
Il. ISSUES PRESENTED
1 The trial court clearly abused its discretion by denying
Williams’ Motion to Dismiss for Forum Non Conveniens
because the court failed to reference and apply the principles
established by the Texas Supreme Court that guide application
of the forum non conveniens doctrine
The trial court clearly abused its discretion by refusing to
dismiss the declaratory judgment action because Jonah sought
a declaration of non-liability on Williams’ tort claim. ........... 3
IV STATEMENT OF FACTS
ARGUMENT
A The Trial Court’s Denial of Williams’ Motion to Dismiss
for Forum Non Conveniens is Properly Reviewable
via Mandamus
The Trial Court Abused its Discretion by Failing to Reference
and Apply the Guiding Forum Non Conveniens Principles
Application of the Gulf Oil Factors to the Evidence in the
Record Clearly Favors a Wyoming Forum 11
1 Adequate Alternative Forum 11
2 Private Interests 13
3 Public Interests 14
ii
D. By Failing to Dismiss or Stay the Declaratory Judgment Action,
The Trial Court Abused its Discretion 16
1 Whether To Exercise Jurisdiction Over A Declaratory
Judgment Action Lies Within The Trial Court’s Sound
Discretion 16
A Declaratory Judgment Action May Not Be Used to
Determine Tort Liability. 17
The Trial Court Should Have Declined Jurisdiction
Because Jonah Filed the Declaratory Judgment Action
As A Forum-Shopping Tactic. .............0..000005 19
VI. CONCLUSION AND PRAYER 23
VERIFICATION 24
CERTIFICATE OF SERVICE 25
FIGURE 1 26
iii
INDEX OF AUTHORITIES
Page
CASES
Abor v. Black, 695 S.W.2d 564 (Tex. 1985) 17-19
Am. Nuclear Insurers v. Metro. Edison Co., 582 A.2d 390
(Pa. 1990) 22
Amaro y. Texas State Bank, 28 S.W.3d 789 (Tex. App.—Corpus Christi 2000)
aff'd in part & modified on other grounds, 87 S.W. 3d 538 (Tex. 2002) 18
Anheuser-Busch, Inc. v. Supreme Int'l Corp., 167 F.3d 417
(8" Cir. 1999) 22
A. P. Keller Dev., Inc. v. One Jackson Place, Ltd., 890 S.W.2d 502
(Tex. App.—El Paso 1994, no writ) 9,11
Averitt v. Pricewaterhouse Coopers, L.L.P., 89 S.W.3d 330 (Tex. App.—Fort
Worth 2002, no pet.) 18
Bexar-Medina-Atascosa Counties Water Control & Improvement Dist.
Number | y. Medina Lake Protection Assoc., 640 S.W.2d 778
(Tex. App.—San Antonio 1982, writ ref'd n.r.e.) 16
Burris v. Cross, 583 A.2d 1364 (Del. Sup. Ct. 1990) 17
Central Nebraska Public Power and Irrig. Dist. v. Jeffery Lake Dev.,
Inc., 679 N.W.2d 235 (Neb. 2004) 22
Crawford v. City of Houston, 600 S.W.2d 891 (Tex. Civ. App.—Houston [1st Dist.]
1980, writ ref'd m.7.€.) 0... eet eee eee 17
DeMino v. Sheridan, 176 S.W.3d 359 (Tex. App.—Houston [1st Dist.] 2004,
pet. denied) 18
Direct Color Serv., Inc. v. Eastman Kodak Co., 929 S.W.2d 558
(Tex. App.—Tyler 1996, writ denied) 9, 11, 12
Easter v. Technetics Management Corp., 135 S.W.3d 821
(Tex. App.—Houston [1st Dist.] 2004, pet. granted, vacated w.r.m.) 2.0.0.0...
0.. 0 cece ee 10
Equal Employment Opportunity Comm’n v. Univ. of Pennsylvania,
850 F.2d 969 (3d Cir. 1988) 20, 21
lv
Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215 (2d Cir. 1978),
cert. denied,440 U.S. 908 (1979) 21, 22
Fidelity Bank v. Mortgage Funding Corp. of Am., 855 F. Supp. 901
(N.D. Tex. 1994) 17,19
Flaiz v. Moore, 359 S.W.2d 872 (Tex. 1962) 8, 9, 13, 14
Frontier Pacific Ins. Co. v. Marathon Ashland Pet., L.L.C.,
87 F. Supp. 2d 719 (S.D. Tex. 2000) 17, 19
Gavle v. Little Six, Inc., 555 N.W.2d 284 (Minn. 1996) 20
General Foods Corp. v. Cryo-Maid, Inc., 194 A.2d 43 (Del. Supr. Ct. 1963) 22
Georgiades v. Di Ferrante, 871 S.W.2d 878 (Tex. App—Houston 1994, writ denied) 17
Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 91 L. Ed. 1055,
67 S. Ct. 839 (1947) 8-11, 14, 15
H. Rouw Co. v. Railway Express Agency, 154 S.W.2d 143
(Tex. Civ. App.—E] Paso 1941, writ ref’d) 10, 11
Heatron, Inc. v. Shackelford, 898 F. Supp. 1491 (D. Kan. 1995) 21
Housing Auth. of City of Harlingen v. Valdez, 841 S.W.2d 860
(Tex. App.—Corpus Christi 1992, writ denied) 18
In re Pirelli Tire LLC, 51 Tex. Sup. Ct. J. 90 (Tex. Nov. 2, 2007) 6-9, 11, 13-15
In re Smith Barney, Inc., 975 S.W.2d 593 ( Tex. 1998) (orig proceeding) 9,10
Johnson v. Avery, 414 S.W.2d 441 (Tex. 1966) 21
K.M.S. Research Lab., Inc. v. Willingham, 629 §.W.2d 173 (Tex.
App.—Dallas 1982, no writ) 16, 17
Medtronic, Inc. v. Advanced Bionics Corp., 630 N.W.2d 438
(Minn. Ct. App. 2001) 22
Mission Ins. Co. v. Puritan Fashions Corp., 706 F.2d 599 (5th Cir. 1983) 22
Orthmann v. Apple River Campground, Inc., 765 F.2d 119 (8th Cir. 1985) 20
Owens Corning v. Carter, 997 S.W.2d 560 (Tex. 1999)
Perry v. Del Rio, 66 S.W.3d 239 (Tex. 2001) 20
Rowan Companies, Inc. v. Griffin, 876 F.2d 26 (Sth Cir. 1989) 19
Sarieddine v. Moussa, 820 S.W.2d 837 (Tex. App.—Dallas 1991, writ denied)
Schwartz v. Nat'l Van Lines, Inc., 317 F. Supp. 2d 829
(N.D. Ill. 2004) 21
Serco Serv. Co. v. Kelley Co., 51 F.3d 1037 (Fed. Cir. 1995) 22
Shaw v. Smith, 964 P.2d 428 (Wyo. 1998) 12
Soroka v, Lee Technologies Services, Inc., 1:06-CV-0710 TWT, 2006 WL 1734277
(N.D. Ga. June 19, 2006) 21
Space Master Int’l, Inc. v. Porta-Kamp Mfg., Co., 794
S.W.2d 944 (Tex. App.—Houston [1st Dist.] 1990, no writ) . : 18, 20
State Farm Mut. Auto. Ins. Co. v. Allstate Ins. Co.,
684 N.W.2d 14 (Neb. 2004) 17
State v. Brown & Williamson Tobacco Corp., 18 S.W.3d 186 (Tenn. 2000) 17
Stein v. First Nat’l Bank of Bastrop, 950 S.W.2d 172
(Tex. App.—Austin 1997, no writ) 18
Tempco Elec. Heater Corp. v. Omega Eng’g, Inc., 819 F.2d 746
(7th Cir. 1987) 22
Wyo. Bd. of Certified Accountants v. Christensen, 800 P.2d 853 (Wyo. 1990) 12
Yoder v. Heinold Commodities, Inc., 630 F. Supp. 756 (E. D. Va. 1986) 21
Yoroshii Inv. Partnership Ltd. v. BP Int’l Ltd., 179 S.W.3d
639 (Tex. App.—E] Paso 2005, pet. denied) 12
Zide Sport Shop of Ohio, Inc. v. Ed Tobergte Assocs., Inc.,
16 F. App’x. 433 (6" Cir 2001) 21
RULES & STATUTES
Tex. Civ. PRAC. & REM. CODE § 37.001 12, 16
Tex. Civ. PRAC. & REM. CODE § 37.002 17
TEx. Civ. PRAC. & REM. CODE § 71.051 8,9
Vi
Tex. Gov'T CODE ANN. § 22.221
TEX. R. App. P. § 52
Wyo. STAT. ANN. § 1-37-101 12
vii
NO.
IN THE COURT OF APPEALS
FOR THE
SUPREME JUDICIAL DISTRICT
AT HOUSTON
IN RE WILLIAMS GAS PROCESSING COMPANY,
N/K/A WILLIAMS FIELD SERVICES COMPANY, LLC,
Relator.
PETITION FOR WRIT OF MANDAMUS
Williams Gas Processing Company n/k/a Williams Field Services Company, LLC
(“Williams”) appears under TEX. R. App. P. 52 to request this Court to grant its petition for
writ of mandamus, directing the 281% Judicial District Court of Harris County, Texas, to
vacate its November 7, 2007 order which denied Williams’ Motion to Dismiss for Forum
Non Conveniens, to Decline Jurisdiction or, Alternatively to Stay Action and dismiss the
pending district court action. As discussed below, the district court clearly abused its
discretion in: (1) denying Williams’ motion to dismiss on forum non conveniens grounds;
and (2) denying Williams’ motion to dismiss or stay a declaratory judgment action seeking
a declaration of non-liability in tort.
I
STATEMENT OF THE CASE
The underlying suit is a declaratory judgment action in which Jonah Gas Gathering
Company (“Jonah”) seeks a declaration of non-liability to Williams under Wyoming contract
and tort law, for events occurring exclusively in Wyoming.
Respondent is the Honorable David J. Bernal, Judge of the 281" District Court of
Harris County, Texas.
Williams sought the dismissal of Jonah’s Texas declaratory judgment suit based upon
the forum non conveniens doctrine and because of the impropriety of Jonah’s attempt to
obtain a declaration of non-liability on Williams’ tort claim.
Jonah opposed Williams’ forum non conveniens motion on two grounds. First, Jonah
argued that it is a Texas resident and that the forum non conveniens doctrine therefore is
inapplicable. (Rec. pp. 55, 57). Second, Jonah argued that the district court lacked any
discretion to dismiss its declaratory judgment action. (Rec. p. 59). On November 7, 2007,
the district court denied Williams’ forum non conveniens motion with a one sentence order
stating:
Came on to be considered Williams’ Motion to Dismiss for Forum
Non Conveniens, to Decline Jurisdiction or, Alternatively, to Stay
action and Original Answer, and the Court having considered said
Motion all responses thereto, finds that said motion should be, and it
is hereby DENIEDin its entirety.
(Rec. p. 1).
In this original proceeding, Relator seeks a writ of mandamus commanding the district
court judge to vacate his November 7, 2007 order, and directing that the action below be
dismissed on forum non conveniens grounds or, alternatively, dismissed because Williams’
tort claim precludes the grant of complete relief in the declaratory judgment proceeding.
I.
STATEMENT OF JURISDICTION
The Court of Appeals has jurisdiction over mandamus proceedings pursuant to TEX.
Gov’T CoDE ANN. § 22.221.
I.
ISSUES PRESENTED
The trial court clearly abused its discretion by denying Williams’
Motion to Dismiss for Forum Non Conveniens because the court failed
to reference and apply the principles established by the Texas Supreme
Court that guide application of the forum non conveniens doctrine.
The trial court clearly abused its discretion by refusing to dismiss the
declaratory judgment action because Jonah sought a declaration ofnon-
liability on Williams’ tort claim.
IV.
STATEMENT OF FACTS
Relator-Defendant Williams is a Delaware limited liability company whose principal
place of business is in Tulsa, Oklahoma.' Williams owns and operates a gas processing plant
located in Opal Wyoming (the “Wyoming Plant”). (Rec. p. 25, [ 2, 3). The claims which
give rise to the proceedings below exclusively concern injuries and damages suffered at the
Wyoming Plant. (Rec. p. 25, {] 9, 10, 11; p. 48; p. 50). Jonah is a Wyoming general
partnership. Jonah owns and operates a gas gathering system that is likewise located in
Wyoming. (Rec. pp. 3-4; p. 25, § 3).
Williams and Jonah are parties to a written Interconnect and Operation Balancing
1
Williams is authorized to, and does, conduct business in Texas, and maintains an
office in Houston, Texas. (Rec. p.11).
3
Agreement (the “Interconnect Agreement”) that obligates Jonah to deliver contaminant-free
natural gas to the Wyoming Plant. (Rec. pp. 29, 36).’ The Agreement provides that it “shall
be interpreted, construed, and governed by the laws of the State of Wyoming, without regard
to choice of law principles thereof.” (Rec. p. 40). The Interconnect Agreement was not
executed in Texas. (Rec. p. 25-26, J 5; p. 29).
The current dispute involves Williams’ claim that Jonah delivered contaminated
natural gas to the Wyoming Plant that damaged the plant and adversely affected its
operations. (Rec. pp. 5, 8, 48). At the time the Interconnect Agreement was executed, Jonah’s
chief executive office was located in Casper, Wyoming. (Rec. p. 76-77). Thereafter, Jonah
relocated its chief executive office to Houston, Texas. (Rec. p. 75).
In October 2005, Williams delivered written notice to Jonah about the contaminated
gas problem along with a demand that the problem be corrected. (Rec. p. 48). Specifically,
Williams advised that the non-conforming gas had damaged equipment at the Wyoming
Plant, necessitated installation of new or additional equipment, adversely affected the plant
operations and had damaged Williams in the sum of approximately $15,000,000. Williams
Specifically, the Interconnect Agreement expressly requires Jonah’s delivered gas to
“conform to the most restrictive quality specifications required from time to time by
the Interconnecting Pipelines.” (Rec. p. 25-26, J§ 5-8; p. 36; p. 48). As that
provision recognizes, Williams also has written agreements with third parties to whom
Williams delivers the gas after it is processed at the Wyoming Plant. Those
Interconnecting Pipeline agreements require that the gas be “free from any foreign
material suchas solids, oils, hydrocarbons or water in the liquid phase, gums, dirt,
metal particles and other objectionable substances.” (referred to herein collectively
as “Contaminants”). (Rec. p. 26, {{ 7-8; p. 47). Thus, Jonah is required to deliver
gas to Williams’ Wyoming Plant that is free from Contaminants.
4
requested that Jonah take immediate action to rectify the problem and deliver gas that
complied with the contract. (Rec. p. 48).
One year later, while still experiencing ongoing problems due to Jonah’s delivery of
non-conforming gas, Williams invoked the alternative dispute resolution provisions
contained in the Interconnect Agreement. (Rec. p. 4, 50).? Before that process had
concluded, Jonah filed the declaratory judgment action below, without prior notice to
Williams of its intent to do so.*
By letter dated November 29, 2006, Williams provided notice to Jonah of invocation
of the ADR provisions under the Interconnect Agreement. (Rec. p. 50; p. 125, 1).
In that notice, Williams advised of its position that Jonah’s failures gave rise to claims
for monetary damages in contract and in tort. By letter agreement dated December
13, 2006, the parties agreed to waive the ADR time deadlines. (Rec. p. 125, 92; 130).
By letter dated January 5, 2007, Jonah responded to Williams’ notice of claim. (Rec.
p. 125, 93; p. 132).
Pursuant to the ADR provision, representatives of the parties held a face-to-face
meeting in Denver, Colorado on January 24, 2007. (Rec. p. 125, 4). The parties
scheduled a second meeting, of the same level representatives, for February 28, 2007.
The meeting was, however, canceled at Jonah’s request due to scheduling problems.
(Rec. p. 125, 95). That meeting was to be rescheduled, but had not been prior to the
filing of the action below. (Rec. pp. 125-126, J 4-5).
On June 5, 2007, Dan Duncan, Chairman of the Board of Enterprise Products GP,
LLC and Alan Armstrong, President of Williams Midstream Gathering & Processing,
held a dinner meeting to discuss a wide-range of issues between the companies,
including the Jonah-Williams dispute. (Rec. p. 126, { 6; pp. 138-139). Enterprise
Products GP, LLC is the general partner of Enterprise Products Partners, L.P., which
is one of Jonah’s general partners. (Rec. p. 139, § 2). It was not Williams’ belief or
understanding that the Duncan/Armstrong meeting was the second level (more senior)
meeting of company representatives required by the ADR provision, as the Wyoming
Plant issue was merely one of several disputes between the companies encompassed
by the meeting. No resolution of issues was reached at the dinner meeting. (Rec. pp.
139-140).
In response, Williams filed its Motion to Dismiss for Forum Non Conveniens, to
Decline Jurisdiction or, Alternatively, to Stay Action (“Williams’ forum non conveniens
motion”), (Rec. p. 8). On the same day, Williams filed suit for money damages against Jonah
in Lincoln County, Wyoming, the county where the Wyoming Plant is located. In its
Wyoming action, Williams has alleged breach of contract and negligence claims against
Jonah. (Rec. pp. 100-104).
The parties fully briefed Williams’ motion to the trial court. (Rec. p. 8; p. 55; p. 98;
p. 105). On November 5, 2007, the trial court heard oral argument. No transcript of the
proceeding was made. On November 7, 2007, the trial court entered its one-sentence order
denying Williams’ motion. (Rec. p. 1).
V.
ARGUMENT
A The Trial Court’s Denial of Williams’ Motion to Dismiss for Forum
Non Conveniens is Properly Reviewable via Mandamus
In Jn re Pirelli Tire, LLC, 51 Tex. Sup. Ct. J. 90, 2007 Tex. LEXIS 980 (Tex.
November 2, 2007), the Texas Supreme Court held that “as with other discretionary
By letter dated June 11, 2007, Jonah advised Williams that, in Jonah’s opinion, the
parties had complied with the informal meeting requirements of the ADR provision,
and made a demand for mediation -- the next level provided under the ADR. (Rec.
p. 54). The letter contained no deadline for responding. (Rec. p. 27, [{ 12-13; p. 54;
p. 126, Jf 8-9; p. 140, {| 4-5). Although Williams’ representatives had discussed
internally how to respond to Jonah’s June 1 letter in view of Williams’ belief that the
second level meeting called for had not occurred, Williams had not yet responded to
Jonah when, on July 24, 2007, Jonah filed the declaratory judgment action below.
Jonah did not contact Williams or otherwise give notice of its intention to file suit
prior to the filing of its petition. (Rec. p. 3; p.27, F¥ 13-14; pp. 126-127, f 8-11; pp.
140, 4§ 4-5).
decisions, a trial court’s forum-non-conveniens ruling is subject to review for clear abuse of
discretion” and that an erroneous denial of a forum non conveniens motion “cannot be
adequately rectified on appeal.” Jd. at 90, 2007 Tex. LEXIS at * 10, 21. Thus, in the case
sub judice, the trial court’s decision denying Williams’ motion is a proper subject for
mandamus.
B The Trial Court Abused its Discretion by Failing to Reference and Apply
the Guiding Forum Non Conveniens Principles
The Pirelli decision well-illustrates the required forum non conveniens analysis and
how the trial court’s failure to apply and reference the guiding principles in this case
constitutes a clear abuse of discretion.
Pirelli concerned a wrongful death action brought in Texas by citizens of Mexico
arising out of a single vehicle accident in Mexico. The plaintiffs brought suit in Cameron
County, Texas against Pirelli, a Delaware company whose principal place of business was
in Georgia, alleging claims of negligent design and strict tort liability. Jd. at 90, 2007 Tex.
LEXIS at *2-3. Pirelli moved to dismiss the action based upon forum non conveniens
grounds. The trial court denied the motion, and the court of appeals denied mandamus relief.
The Supreme Court granted Pirelli’s petition for mandamus “to consider the parameters of
the trial court’s discretion in deciding the dismissal motion.” Jd. 91,2007 Tex. LEXIS at *3.
The Pirelli Court held that “‘[a] trial court abuses its discretion if its decision “is
arbitrary, unreasonable, and without reference to guiding principles.””” Id. at 92,2007 Tex.
LEXIS at *10-11 (emphasis added, Court’s citations omitted). Referring to its decision in
Flaiz v. Moore, 359 S.W.2d 872, 874 (Tex. 1962), the Supreme Court noted:
We identified the principles that guide application of the forum-non-
conveniens doctrine long ago, when we embraced the analytical framework the
United States Supreme Court articulated in Gulf Oil [Corp. v. Gilbert, 330
US. 501, 91 L. Ed. 1055, 67 S. Ct. 839 (1947)].
Id. 93, 2007 Tex. LEXIS at *11.
Because the Pirelli plaintiffs were individuals suing for wrongful death, their claims
were governed by Texas’ statutory forum non conveniens doctrine -- § 71.051 TEX. Crv.
PRAC. & REM. CoDE.° Although § 71.051(b) lists six factors to be considered by a court in
making the forum non conveniens determination, the Court observed that “[t]here is
obviously much overlap between the Gulf Oil factors and those contained in
section 71.051(b) of the Civil Practice and Remedies Code.” Id. at 90, 2007 Tex. LEXIS at
*13. Moreover, the Court noted that the fact that the Legislature chose to incorporate into
§ 71.051(b) some of the specific concepts of Gulf Oil should not be read as excluding
consideration of the other Gulf Oil factors. To the contrary, the Court found that “the Gulf
Oil test has guided courts for decades in determining whether a case should be dismissed on
forum-non-conveniens grounds.” /d., 2007 Tex. LEXIS at *14. Hence, the Court concluded
that the Legislature was aware of the Gulf Oil factors and intended that Texas courts would
continue to apply them in deciding whether to dismiss an action for forum non conveniens.
Id?
Specifically at issue was the 1997 version of § 71.051(a).
Because Pirelli involved a claim for wrongful death, the forum non conveniens
motion was governed by § 71.051. See Owens Corning v. Carter, 997 S.W.2d 560,
564 (Tex. 1999). (“Section 71.051 is Texas’ law of forum non conveniens in all
8
The Supreme Court then proceeded to consider the facts presented in the record,
applying the Gulf Oil factors. First, the Court found that an adequate alternative forum
existed in Mexico. Jd. at 93-94, 2007 Tex. LEXIS at *15-18. Second, the Court concluded
that the “private interest” factors weighed in favor of trial in Mexico. In this regard, the
Court noted that the accident scene was located in Mexico; key evidence and witnesses
concerning damages were in Mexico; and none of those witnesses could be compelled to
testify in Texas. And, third, the Court concluded that the “public interest” factors also
strongly favored trial in Mexico. The Court found Mexico has an interest in protecting its
citizens and seeing that they are compensated for their injuries. “On the other hand,” the
Court added, “it is unfair to impose upon the citizens of Cameron County the cost and
actions for personal injury or death.”). Williams’ claims (for breach of contract and
negligence) concern injury to equipment and economic loss. Therefore, Williams’
motion to dismiss for forum non conveniens is controlled by the common law doctrine
rather than § 71.051. See Sarieddine v. Moussa, 820 S.W.2d 837, 841 (Tex. App.—
Dallas 1991, writ denied)(“[W]e hold that Texas continues to recognize the validity
of the theory of forum non conveniens for all cases except those involving personal
injury or death.”); Direct Color Serv., Inc. v. Eastman Kodak Co., 929 $.W.2d 558,
562 (Tex. App.— Tyler 1996, writ denied)(“Texas recognizes the doctrine [of forum
non conveniens] as a procedural rule which does not determine jurisdiction, but only
determines that the jurisdiction which exists should not be exercised where another
forum, also having jurisdiction, is better able to act.”). As the Court observed in
Pirelli, in applying the common law doctrine of forum non conveniens, Texas courts
have recognized and applied the Gulf Oil guidelines for decades. See, e.g., Flaiz v.
Moore, supra, 359 S.W.2d at 874 (quoting from Gulf Oil and noting that “[t]he
statement of the factors to be considered in applying the doctrine of forum non
conveniens made [by the Gulf Oil Court] has been referred to or quoted in many
cases.”); In re Smith Barney, Inc., 975 S.W.2d 593, 594 n. 2 and 596 (Tex.
1998)(citing and quoting from Gulf Oil); Direct Color Serv., supra, 929 S.W.2d, at
562-63 (recognizing the Texas Supreme Court’s adoption of the Gulf Oil factors, and
quoting extensively from Gulf Oil); A. P. Keller Dev., Inc. v. One Jackson Place, Ltd.,
890 S.W.2d 502, 505-06 (Tex. App.—E] Paso 1994, no writ)(same).
9
administrative burden of a complex products-liability suit with no significant connection to
Texas. As the Supreme Court has stated, ‘[j]ury duty is a burden that ought not to be
imposed upon the people of a community which has no relation to the litigation.”” Jd. at 95,
2007 Tex. LEXIS at *20 (citing Gulf Oil, 330 U.S. at 508-09).
From its independent analysis, the Court concluded that the Gulf Oil factors clearly
favored trial in Mexico. Therefore, the Court held that in light of the facts in the record, the
trial court’s denial of Pirelli’s motion to dismiss for forum non conveniens “was arbitrary,
unreasonable, contrary to guiding rules and principles, and constituted a clear abuse of
discretion.” Jd. at 95, 2007 Tex. LEXIS at *20-21.
In the case at bar, Jonah argued that the forum non conveniens doctrine was
inapplicable because it was a Texas resident. Jonah did not even attempt to controvert
Williams’ explanation why dismissal was warranted under the controlling Gulf Oil factors.’
Although it is a Wyoming general partnership, Jonah argued below that because it has
an executive office in Houston, it is a Texas “resident” and therefore is immune from
dismissal on forum non conveniens grounds. (Rec. pp. 57-59). In support of its
proposition, Jonah relied upon dictum from Easter v. Technetics Management Corp.,
135 S.W.3d 821 (Tex. App.—Houston [1st Dist.] 2004, pet. granted, vacated w.r.m.)
and argued that forum non conveniens is inapplicable to a business entity resident of
Texas. However, Easter’s dictum in a case involving an individual Texas resident is
inapplicable and not supported by either of the two cases it cites as authority therefor;
nor has Easter been cited with approval in any published appellate decision. (Rec. pp.
108-112). Significantly, in Jn re Smith Barney, Inc., supra, the Supreme Court earlier
rejected the proposition that forum non conveniens could not be applied against a
Texas corporation whose principal place of business was in New York and had never
done business in Texas. In so holding, the Court expressly overruled H. Rouw Co. v.
Railway Express Agency, 154S.W.2d 143 (Tex. Civ. App.—E] Paso 1941, writref’d).
In Rouw, an Arkansas corporation authorized to do business in Texas sued a Delaware
corporation also licensed to do business in Texas. The district court dismissed the
action for forum non conveniens, but the Court of Appeals reversed. In rejecting
10
In denying Williams’ motion, the trial court made no findings of fact or conclusions of law.
Its one-sentence order is similarly devoid of any indication that the trial court followed, or
even attempted to apply, the guiding Gulf Oil principles.
As the Supreme Court held in Pirelli, a trial court abuses its discretion where its
decision is “without reference to guiding principles.” Jd. at 92, 2007 Tex. LEXIS at *11.
Here, in the face of argument that it need not conduct any forum non conveniens analysis,
the trial court has not provided the litigants or this Court with any evidence that it conducted
any such analysis and its failure to do so constitutes a clear abuse of discretion. In any event,
to the extent the trial court purported to perform the requisite analysis, on the record before
it, its failure to grant Williams’ motion constituted a clear abuse of discretion.
Cc. Application of the Gulf Oil Factors to the Evidence in the Record Clearly
Favors a Wyoming Forum
1 Adequate Alternative Forum
“The Gulf Oil factors presuppose that an adequate alternative forum would have
jurisdiction over the case.” Pirelli, supra, at 93, 2007 Tex. LEXIS at *15. Here, Wyoming
provides a forum that is both available and adequate. See Direct Color Serv., supra, 929
Rouw, the Supreme Court again embraced Gulf Oil’s forum non conveniens analysis,
Id. at 596-97, and observed, “[i]t simply makes no sense to allow foreign corporations
an absolute right to sue non-residents in Texas courts when individuals have never
been accorded the same right. It is fundamentally unfair to burden the people of Texas
with the cost of providing courts to hear cases that have no significant connection
with the State.” Jd. at 597-98. The same is true here--where a Wyoming general
partnership sues a Delaware limited liability company in an action with no significant
nexus with Texas. See A.P. Keller Dev., supra, (affirming dismissal for forum non
conveniens of suit brought by Texas corporation whose principal place of business
was in Houston).
11
S.W.2d at 563 (such requires a determination that the forum has jurisdiction over the parties
and that it will not deprive a party of a remedy or treat a party unfairly); Yoroshii Inv.
Partnership Ltd. v. BP Int’l Ltd., 179 S.W.3d 639, 643 (Tex. App.—El Paso 2005, pet.
denied)(there is a presumption that an adequate, alternative forum exists). Wyoming state
courts are courts of general jurisdiction. See Wyo. Bd. of Certified Accountants v.
Christensen, 800 P.2d 853, 856 (Wyo. 1990). Thus, the District Court of Lincoln County,
Wyoming has subject matter jurisdiction over the controversy. Wyoming may also exercise
in personam jurisdiction over the parties. The claims at issue arose in Wyoming. Jonah is
a Wyoming general partnership, and its gas gathering system is located in Wyoming. (Rec.
pp. 3-5; pp. 99-103). Hence, Jonah maintains adequate contacts with Wyoming and is
subject to suit there. See Shaw v. Smith, 964 P.2d 428, 434 (Wyo. 1998). Williams does
business in Wyoming, and its Opal Plant is located in Wyoming. (Rec. p. 25). In addition,
by filing its damages lawsuit there (Rec. p. 100), Williams has submitted itself to the
jurisdiction of the Wyoming court. See Direct Color Serv., 929 S.W.2d at 565. As both
parties own property in Wyoming and conduct substantial business there, there is no reason
to believe that any party will be treated unfairly there. Given the fact that Wyoming law
governs the dispute, the availability of remedies is also a non-issue.® Significantly, once the
movant establishes the existence of an alternative forum, the burden shifts to the non-movant
The only remedy Jonah seeks is declaratory judgment. Like Texas, Wyoming has adopted
the Uniform Declaratory Judgments Act. See § 37.001, et seq., TEX. CIV. PRAC. & REM.
Cope and WYO. STAT. ANNO. § 1-37-101, et seq.
12
to show that the forum would not be adequate. Jd. at 563. Below, Jonah did not argue that
Wyoming would be an inadequate forum. (Rec. pp. 55-65).
2 Private Interests
As the Court observed in Pirelli, the private interests of the litigant must be
considered under the Gulf Oil guidelines. These include:
the relative ease of access to sources of proof; availability of compulsory
process for attendance of unwilling, and the cost of obtaining attendance of
willing, witnesses; possibility of view of premises, if view would be
appropriate to the action; and all other practical problems that make trial of a
case easy, expeditious and inexpensive.
Pirelli at 93, 2007 Tex. LEXIS at *12 (citing Flaiz v. Moore, 359 S.W.2d at 874 and quoting
Gulf Oil, supra, 330 U.S. at 508).
Here, key fact witnesses and evidence are located in Wyoming. (Rec. pp. 127-128,
4] 12-14). Obviously, the damaged gas processing equipment as well as replacement
equipment is located at the Wyoming Plant. Likewise, the equipment installed by Jonah to
“remove” contaminants from the gas -- which Williams alleges is inadequate -- is located just
outside the Wyoming Plant. (Rec. p. 25; p. 29). In a case involving complex machinery and
chemical processes utilized in the delivery and processing of natural gas, a site inspection of
the Wyoming Plant will be invaluable to the finder of fact in understanding Williams’
damages evidence. Additionally, Williams has dozens of large filters that have been fouled
by the contaminated gas, as well as scores of physical samples of the contaminants
themselves plus laboratory analyses thereof. All of that evidence is located at the Wyoming
Plant. (Rec. p. 127,4 12). Virtually all fact witnesses reside in Wyoming. This includes
13
at least one former Jonah employee whom Williams plans to call as a witness. (Rec. p. 128,
44 13-14). The Texas court cannot compel such witnesses to testify at trial. Moreover, as
to those witnesses who would voluntarily come to trial (e.g., current Williams employees),
the cost of obtaining such testimony will be substantially greater in Houston, Texas -- some
1,500 miles distant -- than in Wyoming. All of these factors weigh heavily in favor of the
Wyoming forum.
3 Public Interests
Regarding the public interests factors, as the Pirelli Court recounted, in Gulf Oil the
Supreme Court stated:
Administrative difficulties follow for courts when litigation is piled up in
congested centers instead of being handled at its origin. Jury duty is a burden
that ought not to be imposed upon the people of a community which has no
relation to the litigation. In cases which touch the affairs of many persons,
there is reason for holding the trial in their view and reach rather than in
remote parts of the country where they can learn of it by report only. There is
a local interest in having localized controversies decided at home. There is an
appropriateness, too, in having the trial of a diversity case in a forum that is at
home with the state law that must govern the case, rather than having a court
in some other forum untangle problems in conflict of laws, and in law foreign
to itself.
Pirelli, at 93, 2007 Tex. LEXIS at *13 (citing F/aiz and quoting Gulf Oil). In this case, these
factors also weigh heavily in favor of the Wyoming forum.
First, the Interconnect Agreement provides that Wyoming law governs this dispute.
A Wyoming court is understandably more familiar with the laws of that state than even a
very able Texas jurist.
14
Second, the citizens of Harris County have no relation to, or interest in, this dispute.
This is a complex, multi-million dollar damages action that will consume considerable
judicial resources which would otherwise be devoted to local matters.
Third, this lawsuit does not have a significant connection with the State of Texas. As
the Supreme Court observed, the doctrine of forum non conveniens “comes into play when
there are sufficient contacts between the defendant and the forum state to confer personal
jurisdiction upon the trial court, but the case itself has no significant connection to the
forum.” Pirelli, at 92,2007 Tex. LEXIS at *10. Indeed, the only connection between Texas
and this action is that (a) Williams is subject to suit in the state; and (b) Jonah’s executive
office is now located in Houston.
In sum, as Justice Willett so aptly put it in his concurring opinion in Pirelli, “[t}hese
undisputed facts demonstrate convincingly that Texas has no dog in this fight.” Jd. at 97,
2007 Tex. LEXIS at *26.° In such a situation, the Pirelli Court observed, “[w]e have
recognized that ‘it is fundamentally unfair to burden the people of Texas with the cost of
providing courts to hear cases that have no significant connection with the State.’” Jd. at 92,
2007 Tex. LEXIS at *10 (Court’s citations omitted).
As was the case in Pirelli, here the Gulf Oil factors “clearly and overwhelmingly”
favor the Wyoming forum for resolution of this dispute. See Pirelli, at 95,2007 Tex. LEXIS
at *20-21. Thus, in light of the undisputed evidence presented in the record, the trial court’s
9
The paucity of Texas’ connection with this dispute is demonstrated by Figure 1 set forth at
page 26, below.
15
denial of Williams’ motion “was arbitrary, unreasonable, contrary to guiding rules and
principles, and constituted a clear abuse of discretion.” Jd., 2007 Tex. LEXIS at *21.
Therefore, mandamus should be granted and the cause remanded to the trial court with
instructions to dismiss the action.
D. By Failing to Dismiss or Stay the Declaratory Judgment Action, The Trial
Court Abused its Discretion
In addition to its ruling on Williams’ forum non conveniens ground, the trial court also
clearly abused its discretion by refusing to dismiss or stay the declaratory judgment action
to allow the Wyoming court to proceed with adjudication of Williams’ pending damages
lawsuit. As shown below, because Jonah seeks a declaration of non-liability on Williams’
tort claim, a declaratory judgment would be improper and the trial court’s decision runs afoul
of well-settled law. Moreover, because Jonah’s declaratory judgment action was filed purely
as a “forum shopping” first-strike, the trial court clearly abused its discretion by failing to
dismiss or stay that proceeding.
1 Whether To Exercise Jurisdiction Over A Declaratory Judgment
Action Lies Within The Trial Court’s Sound Discretion
Like more than 40 states, Texas has adopted the Uniform Declaratory Judgments Act
(UDJA”). See § 37.001, et seq., TEX. Clv. PRAC. & REM. CODE. It is universally accepted
that the decision of whether to entertain an action for declaratory judgment lies within the
sound discretion of the trial court. See, e.g., Bexar-Medina-Atascosa Counties Water Control
& Improvement Dist. No. 1 v. Medina Lake Protection Assoc., 640 S.W.2d 778 (Tex.
App.—San Antonio 1982, writ ref’d n.r.e.); K.M.S. Research Lab., Inc. v. Willingham, 629
16
S.W.2d 173, 174 (Tex. App.—Dallas 1982, no writ) ; Crawford v. City of Houston, 600
S.W.2d 891, 894 (Tex. Civ. App.—Houston [1st Dist.] 1980, writ ref’d n.r.e.); Burris v.
Cross, 583 A.2d 1364, 1372 (Del. Sup. Ct. 1990); State Farm Mut. Auto. Ins. Co. v. Allstate
Ins. Co., 684 N.W.2d 14, 20 (Neb. 2004); State v. Brown & Williamson Tobacco Corp., 18
S.W.3d 186, 193 (Tenn. 2000); Frontier Pacific Ins. Co. v. Marathon Ashland Pet., L.L.C.,
87 F. Supp. 2d 719, 720 (S.D. Tex. 2000); Fidelity Bank v. Mortgage Funding Corp. of Am.,
855 F. Supp. 901, 903 (N.D. Tex. 1994)."°
2. A Declaratory Judgment Action May Not Be Used to Determine
Tort Liabili
As noted above, Williams has asserted claims against Jonah for breach of contract and
negligence. (Rec. pp. 100-104). Recognizing this, in its Petition below, Jonah not only
seeks a declaration of the parties’ rights under the Interconnect Agreement, but it also has
improperly asked the trial court to declare that “under Wyoming law ... Williams cannot
10 The Texas UDJA expressly provides that it shall be “interpreted and construed as to
effectuate its general purpose to make uniform the law of those states that enact it and to
harmonize, as far as possible, with federal laws and regulations on the subject of declaratory
judgments and decrees.” See § 37.002(c)(emphasis added). Consistent with this statutory
mandate, Texas appellate courts have looked to decisions from other states and federal courts
for guidance in interpreting the UDJA. See, e.g., Abor v. Black, 695 S.W.2d 564, 566 (Tex.
1985)(considering decisions from federal courts and from other states for guidance in
Preview
no. O7-42F8] Wo IN THE COURT OF APPEALS FOR THE — SUPREME JUDICIAL DISTRICT AT HOUSTON IN RE WILLIAMS GAS PROCESSING COMPANY, N/K/A WILLIAMS FIELD SERVICES COMPANY, LLC, Relator. PETITION FOR WRIT OF MANDAMUS FILED Theresa Chan: District Clerk oF Q 6 an Barry Abrams Time: State Bar No. 09822790 Jack W. Higdon State Bar No. 24007360 ABRAMS SCOTT & BICKLEY, L.L.P. 700 Louisiana, Suite 4000 Houston, Texas 77002 Telephone: (713) 22&-6601 Facsimile: (713) 228-6605 ATTORNEYS FOR RELATOR WILLIAMS GAS PROCESSING COMPANY, N/K/A WILLIAMS FIELD SERVICES ComPaANy, LLC ORAL ARGUMENT REQUESTED RECO RDER'S MEMORANDUM “is instrument is of pooringquality at the time of imag NO. IN THE COURT OF APPEALS FOR THE SUPREME JUDICIAL DISTRICT AT HOUSTON IN RE WILLIAMS GAS PROCESSING COMPANY, N/K/A WILLIAMS FIELD SERVICES COMPANY, LLC, Relator. PETITION FOR WRIT OF MANDAMUS Barry Abrams State Bar No. 00822700 Jack W. Higdon State Bar No. 24007360 ABRAMS SCOTT & BICKLEY, L.L.P. 700 Louisiana, Suite 4000 Houston, Texas 77002 Telephone: (713) 228-6601 Facsimile: (713) 228-6605 ATTORNEYS FOR RELATOR WILLIAMS GAS PROCESSING COMPANY, N/K/A WILLIAMS FIELD SERVICES Company, LLC ORAL ARGUMENT REQUESTED IDENTITY OF PARTIES AND COUNSEL Relator Williams Gas Processing Company, n/k/a Williams Field Services Company, LLC Counsel for Relators: Barry Abrams State Bar No. 00822700 Jack W. Higdon State Bar No. 24007360 ABRAMS SCOTT & BICKLEY, L.L.P. 700 Louisiana, Suite 4000 Houston, Texas 77002 Telephone: (713) 228-6601 Facsimile: (713) 228-6605 Stephen L. DeGiusti (admitted pro hac vice below) CROWE & DUNLEVY, A PROFESSIONAL CORPORATION 20 North Broadway, Suite 1800 Oklahoma City, Oklahoma 73102-8273 Telephone: (405) 235-7784 Facsimile: (405) 272-5224 Real Party in Interest Jonah Gas Gathering Company Counsel for Real Party in Thomas W. Paterson Interest State Bar No. 15571500 Carolyn P. Courville State Bar No. 24007042 SUSMAN GODFREY L.L.P. 1000 Louisiana Street, Suite 5100 Houston, Texas 77002-5096 Telephone: (713) 651-9366 Facsimile: (713) 654-6666 Respondent Hon. David J. Bernal Judge, 281" District Court of Harris County, Texas TABLE OF CONTENTS Page IDENTITY OF PARTIES AND COUNSEL INDEX OF AUTHORITIES ML I STATEMENT OF THE CASE U STATEMENT OF JURISDICTION Il. ISSUES PRESENTED 1 The trial court clearly abused its discretion by denying Williams’ Motion to Dismiss for Forum Non Conveniens because the court failed to reference and apply the principles established by the Texas Supreme Court that guide application of the forum non conveniens doctrine The trial court clearly abused its discretion by refusing to dismiss the declaratory judgment action because Jonah sought a declaration of non-liability on Williams’ tort claim. ........... 3 IV STATEMENT OF FACTS ARGUMENT A The Trial Court’s Denial of Williams’ Motion to Dismiss for Forum Non Conveniens is Properly Reviewable via Mandamus The Trial Court Abused its Discretion by Failing to Reference and Apply the Guiding Forum Non Conveniens Principles Application of the Gulf Oil Factors to the Evidence in the Record Clearly Favors a Wyoming Forum 11 1 Adequate Alternative Forum 11 2 Private Interests 13 3 Public Interests 14 ii D. By Failing to Dismiss or Stay the Declaratory Judgment Action, The Trial Court Abused its Discretion 16 1 Whether To Exercise Jurisdiction Over A Declaratory Judgment Action Lies Within The Trial Court’s Sound Discretion 16 A Declaratory Judgment Action May Not Be Used to Determine Tort Liability. 17 The Trial Court Should Have Declined Jurisdiction Because Jonah Filed the Declaratory Judgment Action As A Forum-Shopping Tactic. .............0..000005 19 VI. CONCLUSION AND PRAYER 23 VERIFICATION 24 CERTIFICATE OF SERVICE 25 FIGURE 1 26 iii INDEX OF AUTHORITIES Page CASES Abor v. Black, 695 S.W.2d 564 (Tex. 1985) 17-19 Am. Nuclear Insurers v. Metro. Edison Co., 582 A.2d 390 (Pa. 1990) 22 Amaro y. Texas State Bank, 28 S.W.3d 789 (Tex. App.—Corpus Christi 2000) aff'd in part & modified on other grounds, 87 S.W. 3d 538 (Tex. 2002) 18 Anheuser-Busch, Inc. v. Supreme Int'l Corp., 167 F.3d 417 (8" Cir. 1999) 22 A. P. Keller Dev., Inc. v. One Jackson Place, Ltd., 890 S.W.2d 502 (Tex. App.—El Paso 1994, no writ) 9,11 Averitt v. Pricewaterhouse Coopers, L.L.P., 89 S.W.3d 330 (Tex. App.—Fort Worth 2002, no pet.) 18 Bexar-Medina-Atascosa Counties Water Control & Improvement Dist. Number | y. Medina Lake Protection Assoc., 640 S.W.2d 778 (Tex. App.—San Antonio 1982, writ ref'd n.r.e.) 16 Burris v. Cross, 583 A.2d 1364 (Del. Sup. Ct. 1990) 17 Central Nebraska Public Power and Irrig. Dist. v. Jeffery Lake Dev., Inc., 679 N.W.2d 235 (Neb. 2004) 22 Crawford v. City of Houston, 600 S.W.2d 891 (Tex. Civ. App.—Houston [1st Dist.] 1980, writ ref'd m.7.€.) 0... eet eee eee 17 DeMino v. Sheridan, 176 S.W.3d 359 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) 18 Direct Color Serv., Inc. v. Eastman Kodak Co., 929 S.W.2d 558 (Tex. App.—Tyler 1996, writ denied) 9, 11, 12 Easter v. Technetics Management Corp., 135 S.W.3d 821 (Tex. App.—Houston [1st Dist.] 2004, pet. granted, vacated w.r.m.) 2.0.0.0... 0.. 0 cece ee 10 Equal Employment Opportunity Comm’n v. Univ. of Pennsylvania, 850 F.2d 969 (3d Cir. 1988) 20, 21 lv Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215 (2d Cir. 1978), cert. denied,440 U.S. 908 (1979) 21, 22 Fidelity Bank v. Mortgage Funding Corp. of Am., 855 F. Supp. 901 (N.D. Tex. 1994) 17,19 Flaiz v. Moore, 359 S.W.2d 872 (Tex. 1962) 8, 9, 13, 14 Frontier Pacific Ins. Co. v. Marathon Ashland Pet., L.L.C., 87 F. Supp. 2d 719 (S.D. Tex. 2000) 17, 19 Gavle v. Little Six, Inc., 555 N.W.2d 284 (Minn. 1996) 20 General Foods Corp. v. Cryo-Maid, Inc., 194 A.2d 43 (Del. Supr. Ct. 1963) 22 Georgiades v. Di Ferrante, 871 S.W.2d 878 (Tex. App—Houston 1994, writ denied) 17 Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 91 L. Ed. 1055, 67 S. Ct. 839 (1947) 8-11, 14, 15 H. Rouw Co. v. Railway Express Agency, 154 S.W.2d 143 (Tex. Civ. App.—E] Paso 1941, writ ref’d) 10, 11 Heatron, Inc. v. Shackelford, 898 F. Supp. 1491 (D. Kan. 1995) 21 Housing Auth. of City of Harlingen v. Valdez, 841 S.W.2d 860 (Tex. App.—Corpus Christi 1992, writ denied) 18 In re Pirelli Tire LLC, 51 Tex. Sup. Ct. J. 90 (Tex. Nov. 2, 2007) 6-9, 11, 13-15 In re Smith Barney, Inc., 975 S.W.2d 593 ( Tex. 1998) (orig proceeding) 9,10 Johnson v. Avery, 414 S.W.2d 441 (Tex. 1966) 21 K.M.S. Research Lab., Inc. v. Willingham, 629 §.W.2d 173 (Tex. App.—Dallas 1982, no writ) 16, 17 Medtronic, Inc. v. Advanced Bionics Corp., 630 N.W.2d 438 (Minn. Ct. App. 2001) 22 Mission Ins. Co. v. Puritan Fashions Corp., 706 F.2d 599 (5th Cir. 1983) 22 Orthmann v. Apple River Campground, Inc., 765 F.2d 119 (8th Cir. 1985) 20 Owens Corning v. Carter, 997 S.W.2d 560 (Tex. 1999) Perry v. Del Rio, 66 S.W.3d 239 (Tex. 2001) 20 Rowan Companies, Inc. v. Griffin, 876 F.2d 26 (Sth Cir. 1989) 19 Sarieddine v. Moussa, 820 S.W.2d 837 (Tex. App.—Dallas 1991, writ denied) Schwartz v. Nat'l Van Lines, Inc., 317 F. Supp. 2d 829 (N.D. Ill. 2004) 21 Serco Serv. Co. v. Kelley Co., 51 F.3d 1037 (Fed. Cir. 1995) 22 Shaw v. Smith, 964 P.2d 428 (Wyo. 1998) 12 Soroka v, Lee Technologies Services, Inc., 1:06-CV-0710 TWT, 2006 WL 1734277 (N.D. Ga. June 19, 2006) 21 Space Master Int’l, Inc. v. Porta-Kamp Mfg., Co., 794 S.W.2d 944 (Tex. App.—Houston [1st Dist.] 1990, no writ) . : 18, 20 State Farm Mut. Auto. Ins. Co. v. Allstate Ins. Co., 684 N.W.2d 14 (Neb. 2004) 17 State v. Brown & Williamson Tobacco Corp., 18 S.W.3d 186 (Tenn. 2000) 17 Stein v. First Nat’l Bank of Bastrop, 950 S.W.2d 172 (Tex. App.—Austin 1997, no writ) 18 Tempco Elec. Heater Corp. v. Omega Eng’g, Inc., 819 F.2d 746 (7th Cir. 1987) 22 Wyo. Bd. of Certified Accountants v. Christensen, 800 P.2d 853 (Wyo. 1990) 12 Yoder v. Heinold Commodities, Inc., 630 F. Supp. 756 (E. D. Va. 1986) 21 Yoroshii Inv. Partnership Ltd. v. BP Int’l Ltd., 179 S.W.3d 639 (Tex. App.—E] Paso 2005, pet. denied) 12 Zide Sport Shop of Ohio, Inc. v. Ed Tobergte Assocs., Inc., 16 F. App’x. 433 (6" Cir 2001) 21 RULES & STATUTES Tex. Civ. PRAC. & REM. CODE § 37.001 12, 16 Tex. Civ. PRAC. & REM. CODE § 37.002 17 TEx. Civ. PRAC. & REM. CODE § 71.051 8,9 Vi Tex. Gov'T CODE ANN. § 22.221 TEX. R. App. P. § 52 Wyo. STAT. ANN. § 1-37-101 12 vii NO. IN THE COURT OF APPEALS FOR THE SUPREME JUDICIAL DISTRICT AT HOUSTON IN RE WILLIAMS GAS PROCESSING COMPANY, N/K/A WILLIAMS FIELD SERVICES COMPANY, LLC, Relator. PETITION FOR WRIT OF MANDAMUS Williams Gas Processing Company n/k/a Williams Field Services Company, LLC (“Williams”) appears under TEX. R. App. P. 52 to request this Court to grant its petition for writ of mandamus, directing the 281% Judicial District Court of Harris County, Texas, to vacate its November 7, 2007 order which denied Williams’ Motion to Dismiss for Forum Non Conveniens, to Decline Jurisdiction or, Alternatively to Stay Action and dismiss the pending district court action. As discussed below, the district court clearly abused its discretion in: (1) denying Williams’ motion to dismiss on forum non conveniens grounds; and (2) denying Williams’ motion to dismiss or stay a declaratory judgment action seeking a declaration of non-liability in tort. I STATEMENT OF THE CASE The underlying suit is a declaratory judgment action in which Jonah Gas Gathering Company (“Jonah”) seeks a declaration of non-liability to Williams under Wyoming contract and tort law, for events occurring exclusively in Wyoming. Respondent is the Honorable David J. Bernal, Judge of the 281" District Court of Harris County, Texas. Williams sought the dismissal of Jonah’s Texas declaratory judgment suit based upon the forum non conveniens doctrine and because of the impropriety of Jonah’s attempt to obtain a declaration of non-liability on Williams’ tort claim. Jonah opposed Williams’ forum non conveniens motion on two grounds. First, Jonah argued that it is a Texas resident and that the forum non conveniens doctrine therefore is inapplicable. (Rec. pp. 55, 57). Second, Jonah argued that the district court lacked any discretion to dismiss its declaratory judgment action. (Rec. p. 59). On November 7, 2007, the district court denied Williams’ forum non conveniens motion with a one sentence order stating: Came on to be considered Williams’ Motion to Dismiss for Forum Non Conveniens, to Decline Jurisdiction or, Alternatively, to Stay action and Original Answer, and the Court having considered said Motion all responses thereto, finds that said motion should be, and it is hereby DENIEDin its entirety. (Rec. p. 1). In this original proceeding, Relator seeks a writ of mandamus commanding the district court judge to vacate his November 7, 2007 order, and directing that the action below be dismissed on forum non conveniens grounds or, alternatively, dismissed because Williams’ tort claim precludes the grant of complete relief in the declaratory judgment proceeding. I. STATEMENT OF JURISDICTION The Court of Appeals has jurisdiction over mandamus proceedings pursuant to TEX. Gov’T CoDE ANN. § 22.221. I. ISSUES PRESENTED The trial court clearly abused its discretion by denying Williams’ Motion to Dismiss for Forum Non Conveniens because the court failed to reference and apply the principles established by the Texas Supreme Court that guide application of the forum non conveniens doctrine. The trial court clearly abused its discretion by refusing to dismiss the declaratory judgment action because Jonah sought a declaration ofnon- liability on Williams’ tort claim. IV. STATEMENT OF FACTS Relator-Defendant Williams is a Delaware limited liability company whose principal place of business is in Tulsa, Oklahoma.' Williams owns and operates a gas processing plant located in Opal Wyoming (the “Wyoming Plant”). (Rec. p. 25, [ 2, 3). The claims which give rise to the proceedings below exclusively concern injuries and damages suffered at the Wyoming Plant. (Rec. p. 25, {] 9, 10, 11; p. 48; p. 50). Jonah is a Wyoming general partnership. Jonah owns and operates a gas gathering system that is likewise located in Wyoming. (Rec. pp. 3-4; p. 25, § 3). Williams and Jonah are parties to a written Interconnect and Operation Balancing 1 Williams is authorized to, and does, conduct business in Texas, and maintains an office in Houston, Texas. (Rec. p.11). 3 Agreement (the “Interconnect Agreement”) that obligates Jonah to deliver contaminant-free natural gas to the Wyoming Plant. (Rec. pp. 29, 36).’ The Agreement provides that it “shall be interpreted, construed, and governed by the laws of the State of Wyoming, without regard to choice of law principles thereof.” (Rec. p. 40). The Interconnect Agreement was not executed in Texas. (Rec. p. 25-26, J 5; p. 29). The current dispute involves Williams’ claim that Jonah delivered contaminated natural gas to the Wyoming Plant that damaged the plant and adversely affected its operations. (Rec. pp. 5, 8, 48). At the time the Interconnect Agreement was executed, Jonah’s chief executive office was located in Casper, Wyoming. (Rec. p. 76-77). Thereafter, Jonah relocated its chief executive office to Houston, Texas. (Rec. p. 75). In October 2005, Williams delivered written notice to Jonah about the contaminated gas problem along with a demand that the problem be corrected. (Rec. p. 48). Specifically, Williams advised that the non-conforming gas had damaged equipment at the Wyoming Plant, necessitated installation of new or additional equipment, adversely affected the plant operations and had damaged Williams in the sum of approximately $15,000,000. Williams Specifically, the Interconnect Agreement expressly requires Jonah’s delivered gas to “conform to the most restrictive quality specifications required from time to time by the Interconnecting Pipelines.” (Rec. p. 25-26, J§ 5-8; p. 36; p. 48). As that provision recognizes, Williams also has written agreements with third parties to whom Williams delivers the gas after it is processed at the Wyoming Plant. Those Interconnecting Pipeline agreements require that the gas be “free from any foreign material suchas solids, oils, hydrocarbons or water in the liquid phase, gums, dirt, metal particles and other objectionable substances.” (referred to herein collectively as “Contaminants”). (Rec. p. 26, {{ 7-8; p. 47). Thus, Jonah is required to deliver gas to Williams’ Wyoming Plant that is free from Contaminants. 4 requested that Jonah take immediate action to rectify the problem and deliver gas that complied with the contract. (Rec. p. 48). One year later, while still experiencing ongoing problems due to Jonah’s delivery of non-conforming gas, Williams invoked the alternative dispute resolution provisions contained in the Interconnect Agreement. (Rec. p. 4, 50).? Before that process had concluded, Jonah filed the declaratory judgment action below, without prior notice to Williams of its intent to do so.* By letter dated November 29, 2006, Williams provided notice to Jonah of invocation of the ADR provisions under the Interconnect Agreement. (Rec. p. 50; p. 125, 1). In that notice, Williams advised of its position that Jonah’s failures gave rise to claims for monetary damages in contract and in tort. By letter agreement dated December 13, 2006, the parties agreed to waive the ADR time deadlines. (Rec. p. 125, 92; 130). By letter dated January 5, 2007, Jonah responded to Williams’ notice of claim. (Rec. p. 125, 93; p. 132). Pursuant to the ADR provision, representatives of the parties held a face-to-face meeting in Denver, Colorado on January 24, 2007. (Rec. p. 125, 4). The parties scheduled a second meeting, of the same level representatives, for February 28, 2007. The meeting was, however, canceled at Jonah’s request due to scheduling problems. (Rec. p. 125, 95). That meeting was to be rescheduled, but had not been prior to the filing of the action below. (Rec. pp. 125-126, J 4-5). On June 5, 2007, Dan Duncan, Chairman of the Board of Enterprise Products GP, LLC and Alan Armstrong, President of Williams Midstream Gathering & Processing, held a dinner meeting to discuss a wide-range of issues between the companies, including the Jonah-Williams dispute. (Rec. p. 126, { 6; pp. 138-139). Enterprise Products GP, LLC is the general partner of Enterprise Products Partners, L.P., which is one of Jonah’s general partners. (Rec. p. 139, § 2). It was not Williams’ belief or understanding that the Duncan/Armstrong meeting was the second level (more senior) meeting of company representatives required by the ADR provision, as the Wyoming Plant issue was merely one of several disputes between the companies encompassed by the meeting. No resolution of issues was reached at the dinner meeting. (Rec. pp. 139-140). In response, Williams filed its Motion to Dismiss for Forum Non Conveniens, to Decline Jurisdiction or, Alternatively, to Stay Action (“Williams’ forum non conveniens motion”), (Rec. p. 8). On the same day, Williams filed suit for money damages against Jonah in Lincoln County, Wyoming, the county where the Wyoming Plant is located. In its Wyoming action, Williams has alleged breach of contract and negligence claims against Jonah. (Rec. pp. 100-104). The parties fully briefed Williams’ motion to the trial court. (Rec. p. 8; p. 55; p. 98; p. 105). On November 5, 2007, the trial court heard oral argument. No transcript of the proceeding was made. On November 7, 2007, the trial court entered its one-sentence order denying Williams’ motion. (Rec. p. 1). V. ARGUMENT A The Trial Court’s Denial of Williams’ Motion to Dismiss for Forum Non Conveniens is Properly Reviewable via Mandamus In Jn re Pirelli Tire, LLC, 51 Tex. Sup. Ct. J. 90, 2007 Tex. LEXIS 980 (Tex. November 2, 2007), the Texas Supreme Court held that “as with other discretionary By letter dated June 11, 2007, Jonah advised Williams that, in Jonah’s opinion, the parties had complied with the informal meeting requirements of the ADR provision, and made a demand for mediation -- the next level provided under the ADR. (Rec. p. 54). The letter contained no deadline for responding. (Rec. p. 27, [{ 12-13; p. 54; p. 126, Jf 8-9; p. 140, {| 4-5). Although Williams’ representatives had discussed internally how to respond to Jonah’s June 1 letter in view of Williams’ belief that the second level meeting called for had not occurred, Williams had not yet responded to Jonah when, on July 24, 2007, Jonah filed the declaratory judgment action below. Jonah did not contact Williams or otherwise give notice of its intention to file suit prior to the filing of its petition. (Rec. p. 3; p.27, F¥ 13-14; pp. 126-127, f 8-11; pp. 140, 4§ 4-5). decisions, a trial court’s forum-non-conveniens ruling is subject to review for clear abuse of discretion” and that an erroneous denial of a forum non conveniens motion “cannot be adequately rectified on appeal.” Jd. at 90, 2007 Tex. LEXIS at * 10, 21. Thus, in the case sub judice, the trial court’s decision denying Williams’ motion is a proper subject for mandamus. B The Trial Court Abused its Discretion by Failing to Reference and Apply the Guiding Forum Non Conveniens Principles The Pirelli decision well-illustrates the required forum non conveniens analysis and how the trial court’s failure to apply and reference the guiding principles in this case constitutes a clear abuse of discretion. Pirelli concerned a wrongful death action brought in Texas by citizens of Mexico arising out of a single vehicle accident in Mexico. The plaintiffs brought suit in Cameron County, Texas against Pirelli, a Delaware company whose principal place of business was in Georgia, alleging claims of negligent design and strict tort liability. Jd. at 90, 2007 Tex. LEXIS at *2-3. Pirelli moved to dismiss the action based upon forum non conveniens grounds. The trial court denied the motion, and the court of appeals denied mandamus relief. The Supreme Court granted Pirelli’s petition for mandamus “to consider the parameters of the trial court’s discretion in deciding the dismissal motion.” Jd. 91,2007 Tex. LEXIS at *3. The Pirelli Court held that “‘[a] trial court abuses its discretion if its decision “is arbitrary, unreasonable, and without reference to guiding principles.””” Id. at 92,2007 Tex. LEXIS at *10-11 (emphasis added, Court’s citations omitted). Referring to its decision in Flaiz v. Moore, 359 S.W.2d 872, 874 (Tex. 1962), the Supreme Court noted: We identified the principles that guide application of the forum-non- conveniens doctrine long ago, when we embraced the analytical framework the United States Supreme Court articulated in Gulf Oil [Corp. v. Gilbert, 330 US. 501, 91 L. Ed. 1055, 67 S. Ct. 839 (1947)]. Id. 93, 2007 Tex. LEXIS at *11. Because the Pirelli plaintiffs were individuals suing for wrongful death, their claims were governed by Texas’ statutory forum non conveniens doctrine -- § 71.051 TEX. Crv. PRAC. & REM. CoDE.° Although § 71.051(b) lists six factors to be considered by a court in making the forum non conveniens determination, the Court observed that “[t]here is obviously much overlap between the Gulf Oil factors and those contained in section 71.051(b) of the Civil Practice and Remedies Code.” Id. at 90, 2007 Tex. LEXIS at *13. Moreover, the Court noted that the fact that the Legislature chose to incorporate into § 71.051(b) some of the specific concepts of Gulf Oil should not be read as excluding consideration of the other Gulf Oil factors. To the contrary, the Court found that “the Gulf Oil test has guided courts for decades in determining whether a case should be dismissed on forum-non-conveniens grounds.” /d., 2007 Tex. LEXIS at *14. Hence, the Court concluded that the Legislature was aware of the Gulf Oil factors and intended that Texas courts would continue to apply them in deciding whether to dismiss an action for forum non conveniens. Id? Specifically at issue was the 1997 version of § 71.051(a). Because Pirelli involved a claim for wrongful death, the forum non conveniens motion was governed by § 71.051. See Owens Corning v. Carter, 997 S.W.2d 560, 564 (Tex. 1999). (“Section 71.051 is Texas’ law of forum non conveniens in all 8 The Supreme Court then proceeded to consider the facts presented in the record, applying the Gulf Oil factors. First, the Court found that an adequate alternative forum existed in Mexico. Jd. at 93-94, 2007 Tex. LEXIS at *15-18. Second, the Court concluded that the “private interest” factors weighed in favor of trial in Mexico. In this regard, the Court noted that the accident scene was located in Mexico; key evidence and witnesses concerning damages were in Mexico; and none of those witnesses could be compelled to testify in Texas. And, third, the Court concluded that the “public interest” factors also strongly favored trial in Mexico. The Court found Mexico has an interest in protecting its citizens and seeing that they are compensated for their injuries. “On the other hand,” the Court added, “it is unfair to impose upon the citizens of Cameron County the cost and actions for personal injury or death.”). Williams’ claims (for breach of contract and negligence) concern injury to equipment and economic loss. Therefore, Williams’ motion to dismiss for forum non conveniens is controlled by the common law doctrine rather than § 71.051. See Sarieddine v. Moussa, 820 S.W.2d 837, 841 (Tex. App.— Dallas 1991, writ denied)(“[W]e hold that Texas continues to recognize the validity of the theory of forum non conveniens for all cases except those involving personal injury or death.”); Direct Color Serv., Inc. v. Eastman Kodak Co., 929 $.W.2d 558, 562 (Tex. App.— Tyler 1996, writ denied)(“Texas recognizes the doctrine [of forum non conveniens] as a procedural rule which does not determine jurisdiction, but only determines that the jurisdiction which exists should not be exercised where another forum, also having jurisdiction, is better able to act.”). As the Court observed in Pirelli, in applying the common law doctrine of forum non conveniens, Texas courts have recognized and applied the Gulf Oil guidelines for decades. See, e.g., Flaiz v. Moore, supra, 359 S.W.2d at 874 (quoting from Gulf Oil and noting that “[t]he statement of the factors to be considered in applying the doctrine of forum non conveniens made [by the Gulf Oil Court] has been referred to or quoted in many cases.”); In re Smith Barney, Inc., 975 S.W.2d 593, 594 n. 2 and 596 (Tex. 1998)(citing and quoting from Gulf Oil); Direct Color Serv., supra, 929 S.W.2d, at 562-63 (recognizing the Texas Supreme Court’s adoption of the Gulf Oil factors, and quoting extensively from Gulf Oil); A. P. Keller Dev., Inc. v. One Jackson Place, Ltd., 890 S.W.2d 502, 505-06 (Tex. App.—E] Paso 1994, no writ)(same). 9 administrative burden of a complex products-liability suit with no significant connection to Texas. As the Supreme Court has stated, ‘[j]ury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation.”” Jd. at 95, 2007 Tex. LEXIS at *20 (citing Gulf Oil, 330 U.S. at 508-09). From its independent analysis, the Court concluded that the Gulf Oil factors clearly favored trial in Mexico. Therefore, the Court held that in light of the facts in the record, the trial court’s denial of Pirelli’s motion to dismiss for forum non conveniens “was arbitrary, unreasonable, contrary to guiding rules and principles, and constituted a clear abuse of discretion.” Jd. at 95, 2007 Tex. LEXIS at *20-21. In the case at bar, Jonah argued that the forum non conveniens doctrine was inapplicable because it was a Texas resident. Jonah did not even attempt to controvert Williams’ explanation why dismissal was warranted under the controlling Gulf Oil factors.’ Although it is a Wyoming general partnership, Jonah argued below that because it has an executive office in Houston, it is a Texas “resident” and therefore is immune from dismissal on forum non conveniens grounds. (Rec. pp. 57-59). In support of its proposition, Jonah relied upon dictum from Easter v. Technetics Management Corp., 135 S.W.3d 821 (Tex. App.—Houston [1st Dist.] 2004, pet. granted, vacated w.r.m.) and argued that forum non conveniens is inapplicable to a business entity resident of Texas. However, Easter’s dictum in a case involving an individual Texas resident is inapplicable and not supported by either of the two cases it cites as authority therefor; nor has Easter been cited with approval in any published appellate decision. (Rec. pp. 108-112). Significantly, in Jn re Smith Barney, Inc., supra, the Supreme Court earlier rejected the proposition that forum non conveniens could not be applied against a Texas corporation whose principal place of business was in New York and had never done business in Texas. In so holding, the Court expressly overruled H. Rouw Co. v. Railway Express Agency, 154S.W.2d 143 (Tex. Civ. App.—E] Paso 1941, writref’d). In Rouw, an Arkansas corporation authorized to do business in Texas sued a Delaware corporation also licensed to do business in Texas. The district court dismissed the action for forum non conveniens, but the Court of Appeals reversed. In rejecting 10 In denying Williams’ motion, the trial court made no findings of fact or conclusions of law. Its one-sentence order is similarly devoid of any indication that the trial court followed, or even attempted to apply, the guiding Gulf Oil principles. As the Supreme Court held in Pirelli, a trial court abuses its discretion where its decision is “without reference to guiding principles.” Jd. at 92, 2007 Tex. LEXIS at *11. Here, in the face of argument that it need not conduct any forum non conveniens analysis, the trial court has not provided the litigants or this Court with any evidence that it conducted any such analysis and its failure to do so constitutes a clear abuse of discretion. In any event, to the extent the trial court purported to perform the requisite analysis, on the record before it, its failure to grant Williams’ motion constituted a clear abuse of discretion. Cc. Application of the Gulf Oil Factors to the Evidence in the Record Clearly Favors a Wyoming Forum 1 Adequate Alternative Forum “The Gulf Oil factors presuppose that an adequate alternative forum would have jurisdiction over the case.” Pirelli, supra, at 93, 2007 Tex. LEXIS at *15. Here, Wyoming provides a forum that is both available and adequate. See Direct Color Serv., supra, 929 Rouw, the Supreme Court again embraced Gulf Oil’s forum non conveniens analysis, Id. at 596-97, and observed, “[i]t simply makes no sense to allow foreign corporations an absolute right to sue non-residents in Texas courts when individuals have never been accorded the same right. It is fundamentally unfair to burden the people of Texas with the cost of providing courts to hear cases that have no significant connection with the State.” Jd. at 597-98. The same is true here--where a Wyoming general partnership sues a Delaware limited liability company in an action with no significant nexus with Texas. See A.P. Keller Dev., supra, (affirming dismissal for forum non conveniens of suit brought by Texas corporation whose principal place of business was in Houston). 11 S.W.2d at 563 (such requires a determination that the forum has jurisdiction over the parties and that it will not deprive a party of a remedy or treat a party unfairly); Yoroshii Inv. Partnership Ltd. v. BP Int’l Ltd., 179 S.W.3d 639, 643 (Tex. App.—El Paso 2005, pet. denied)(there is a presumption that an adequate, alternative forum exists). Wyoming state courts are courts of general jurisdiction. See Wyo. Bd. of Certified Accountants v. Christensen, 800 P.2d 853, 856 (Wyo. 1990). Thus, the District Court of Lincoln County, Wyoming has subject matter jurisdiction over the controversy. Wyoming may also exercise in personam jurisdiction over the parties. The claims at issue arose in Wyoming. Jonah is a Wyoming general partnership, and its gas gathering system is located in Wyoming. (Rec. pp. 3-5; pp. 99-103). Hence, Jonah maintains adequate contacts with Wyoming and is subject to suit there. See Shaw v. Smith, 964 P.2d 428, 434 (Wyo. 1998). Williams does business in Wyoming, and its Opal Plant is located in Wyoming. (Rec. p. 25). In addition, by filing its damages lawsuit there (Rec. p. 100), Williams has submitted itself to the jurisdiction of the Wyoming court. See Direct Color Serv., 929 S.W.2d at 565. As both parties own property in Wyoming and conduct substantial business there, there is no reason to believe that any party will be treated unfairly there. Given the fact that Wyoming law governs the dispute, the availability of remedies is also a non-issue.® Significantly, once the movant establishes the existence of an alternative forum, the burden shifts to the non-movant The only remedy Jonah seeks is declaratory judgment. Like Texas, Wyoming has adopted the Uniform Declaratory Judgments Act. See § 37.001, et seq., TEX. CIV. PRAC. & REM. Cope and WYO. STAT. ANNO. § 1-37-101, et seq. 12 to show that the forum would not be adequate. Jd. at 563. Below, Jonah did not argue that Wyoming would be an inadequate forum. (Rec. pp. 55-65). 2 Private Interests As the Court observed in Pirelli, the private interests of the litigant must be considered under the Gulf Oil guidelines. These include: the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. Pirelli at 93, 2007 Tex. LEXIS at *12 (citing Flaiz v. Moore, 359 S.W.2d at 874 and quoting Gulf Oil, supra, 330 U.S. at 508). Here, key fact witnesses and evidence are located in Wyoming. (Rec. pp. 127-128, 4] 12-14). Obviously, the damaged gas processing equipment as well as replacement equipment is located at the Wyoming Plant. Likewise, the equipment installed by Jonah to “remove” contaminants from the gas -- which Williams alleges is inadequate -- is located just outside the Wyoming Plant. (Rec. p. 25; p. 29). In a case involving complex machinery and chemical processes utilized in the delivery and processing of natural gas, a site inspection of the Wyoming Plant will be invaluable to the finder of fact in understanding Williams’ damages evidence. Additionally, Williams has dozens of large filters that have been fouled by the contaminated gas, as well as scores of physical samples of the contaminants themselves plus laboratory analyses thereof. All of that evidence is located at the Wyoming Plant. (Rec. p. 127,4 12). Virtually all fact witnesses reside in Wyoming. This includes 13 at least one former Jonah employee whom Williams plans to call as a witness. (Rec. p. 128, 44 13-14). The Texas court cannot compel such witnesses to testify at trial. Moreover, as to those witnesses who would voluntarily come to trial (e.g., current Williams employees), the cost of obtaining such testimony will be substantially greater in Houston, Texas -- some 1,500 miles distant -- than in Wyoming. All of these factors weigh heavily in favor of the Wyoming forum. 3 Public Interests Regarding the public interests factors, as the Pirelli Court recounted, in Gulf Oil the Supreme Court stated: Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. In cases which touch the affairs of many persons, there is reason for holding the trial in their view and reach rather than in remote parts of the country where they can learn of it by report only. There is a local interest in having localized controversies decided at home. There is an appropriateness, too, in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself. Pirelli, at 93, 2007 Tex. LEXIS at *13 (citing F/aiz and quoting Gulf Oil). In this case, these factors also weigh heavily in favor of the Wyoming forum. First, the Interconnect Agreement provides that Wyoming law governs this dispute. A Wyoming court is understandably more familiar with the laws of that state than even a very able Texas jurist. 14 Second, the citizens of Harris County have no relation to, or interest in, this dispute. This is a complex, multi-million dollar damages action that will consume considerable judicial resources which would otherwise be devoted to local matters. Third, this lawsuit does not have a significant connection with the State of Texas. As the Supreme Court observed, the doctrine of forum non conveniens “comes into play when there are sufficient contacts between the defendant and the forum state to confer personal jurisdiction upon the trial court, but the case itself has no significant connection to the forum.” Pirelli, at 92,2007 Tex. LEXIS at *10. Indeed, the only connection between Texas and this action is that (a) Williams is subject to suit in the state; and (b) Jonah’s executive office is now located in Houston. In sum, as Justice Willett so aptly put it in his concurring opinion in Pirelli, “[t}hese undisputed facts demonstrate convincingly that Texas has no dog in this fight.” Jd. at 97, 2007 Tex. LEXIS at *26.° In such a situation, the Pirelli Court observed, “[w]e have recognized that ‘it is fundamentally unfair to burden the people of Texas with the cost of providing courts to hear cases that have no significant connection with the State.’” Jd. at 92, 2007 Tex. LEXIS at *10 (Court’s citations omitted). As was the case in Pirelli, here the Gulf Oil factors “clearly and overwhelmingly” favor the Wyoming forum for resolution of this dispute. See Pirelli, at 95,2007 Tex. LEXIS at *20-21. Thus, in light of the undisputed evidence presented in the record, the trial court’s 9 The paucity of Texas’ connection with this dispute is demonstrated by Figure 1 set forth at page 26, below. 15 denial of Williams’ motion “was arbitrary, unreasonable, contrary to guiding rules and principles, and constituted a clear abuse of discretion.” Jd., 2007 Tex. LEXIS at *21. Therefore, mandamus should be granted and the cause remanded to the trial court with instructions to dismiss the action. D. By Failing to Dismiss or Stay the Declaratory Judgment Action, The Trial Court Abused its Discretion In addition to its ruling on Williams’ forum non conveniens ground, the trial court also clearly abused its discretion by refusing to dismiss or stay the declaratory judgment action to allow the Wyoming court to proceed with adjudication of Williams’ pending damages lawsuit. As shown below, because Jonah seeks a declaration of non-liability on Williams’ tort claim, a declaratory judgment would be improper and the trial court’s decision runs afoul of well-settled law. Moreover, because Jonah’s declaratory judgment action was filed purely as a “forum shopping” first-strike, the trial court clearly abused its discretion by failing to dismiss or stay that proceeding. 1 Whether To Exercise Jurisdiction Over A Declaratory Judgment Action Lies Within The Trial Court’s Sound Discretion Like more than 40 states, Texas has adopted the Uniform Declaratory Judgments Act (UDJA”). See § 37.001, et seq., TEX. Clv. PRAC. & REM. CODE. It is universally accepted that the decision of whether to entertain an action for declaratory judgment lies within the sound discretion of the trial court. See, e.g., Bexar-Medina-Atascosa Counties Water Control & Improvement Dist. No. 1 v. Medina Lake Protection Assoc., 640 S.W.2d 778 (Tex. App.—San Antonio 1982, writ ref’d n.r.e.); K.M.S. Research Lab., Inc. v. Willingham, 629 16 S.W.2d 173, 174 (Tex. App.—Dallas 1982, no writ) ; Crawford v. City of Houston, 600 S.W.2d 891, 894 (Tex. Civ. App.—Houston [1st Dist.] 1980, writ ref’d n.r.e.); Burris v. Cross, 583 A.2d 1364, 1372 (Del. Sup. Ct. 1990); State Farm Mut. Auto. Ins. Co. v. Allstate Ins. Co., 684 N.W.2d 14, 20 (Neb. 2004); State v. Brown & Williamson Tobacco Corp., 18 S.W.3d 186, 193 (Tenn. 2000); Frontier Pacific Ins. Co. v. Marathon Ashland Pet., L.L.C., 87 F. Supp. 2d 719, 720 (S.D. Tex. 2000); Fidelity Bank v. Mortgage Funding Corp. of Am., 855 F. Supp. 901, 903 (N.D. Tex. 1994)."° 2. A Declaratory Judgment Action May Not Be Used to Determine Tort Liabili As noted above, Williams has asserted claims against Jonah for breach of contract and negligence. (Rec. pp. 100-104). Recognizing this, in its Petition below, Jonah not only seeks a declaration of the parties’ rights under the Interconnect Agreement, but it also has improperly asked the trial court to declare that “under Wyoming law ... Williams cannot 10 The Texas UDJA expressly provides that it shall be “interpreted and construed as to effectuate its general purpose to make uniform the law of those states that enact it and to harmonize, as far as possible, with federal laws and regulations on the subject of declaratory judgments and decrees.” See § 37.002(c)(emphasis added). Consistent with this statutory mandate, Texas appellate courts have looked to decisions from other states and federal courts for guidance in interpreting the UDJA. See, e.g., Abor v. Black, 695 S.W.2d 564, 566 (Tex. 1985)(considering decisions from federal courts and from other states for guidance in