Motion,Ex Parte: THERIOT, DALLAS vs. ENTERPRISE PRODUCTS COMPANY

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                                CAUSE NO. 2019-39423

                  Dallas Theriot                                             §               IN THE DISTRICT COURT OF

                           Plaintiff

                                                                             §                    HARRIS COUNTY, TEXAS

                  Enterprise Products Company;
                  Enterprise Marine Services LLC; and                        §
                  H.O. Bostrom Company, Inc.

                           Defendants.                                       §                  190TH JUDICIAL DISTRICT


                              PLAINTIFF’MOTION TO EQUALIZE PEREMPTORY STRIKES


                           Plaintiff   Dallas   Theriot    respectfully    asks   the  Court   to  equalize    peremptory      strikes

                  between     Plaintiff  and   the  Defendants     by  giving   six  strikes   to each   side.  Each   defendant     is

                  antagonistic    to  Plaintiff   on  the  main    issues   of  this  case   Though     Defendants      have   claims

                  against each other based on ancillary indemnity and warranty issues, the jury’s task here will

                  be  to  determine    and   assess   damages.     Thus,   Plaintiff  should    get  six  strikes  and   Defendants

                  uld get six strikes collectively          .

                           As   the Court    is well  aware,   this  is a  multiparty    case  involving    Pl  aintiff  and  several

                    efendants.    If  each   defendant     was   given   the   same    number     of  peremptory     strikesor    if

                  Defendants were given additional strikes outnumbering those given to Plaintiff                         Defendants

                  would    be  able  to  stack  the  jury  unfairly   in  their  favor.  Equalizing     strikes  between     Plaintiff

                  and   Defendants     will  ensure   that  no  “side”  has   an  unfair  advantage.     See

                  (“.    upon motion of any litigant made prior to the exercise of peremptory challenges, it shall

                  be  the  duty   of  the  trial judge   to  equalize   the  number     of  peremptory      challenges    so  that  n
                  litigant or side is given unfair advantage as a result of the alignment of the litigants and the

                  award of peremptory challenges to each litigant or side”)                Patterson Dental Co. v. Dunn, 592

                  S.W.2d     914,  919   (Tex.   1979).   Whether     there   is antagonism     between     litigants  on   the  same

                  side of a suit is a question of law for the court. See Garcia v. Cent. Power & Light Co., 704

                  S.W.2d    734,   736   (Tex.   1986).   “In  determining     how    the  challenges    should    be  allocated   the

                  court shall consider any matter brought to the attention of the trial judge concerning the ends

                  of justice and the elimination of an unfair advantage.”

                           Plaintiff seeks to hold all Defendants liable for his injuries, which places Defendants

                  on  identical   footing   in relation   to defending     against   the operative evidence on        the key    issue

                  in the case. Even though Defendants have claims against one another, they are all aligned in

                  their  primary    defensive    position;   namely    Plaintiff’s   damagesTo      be  sure,  the  way    each  of

                  these   Defendants      will  pick   this  jury  is  to attempt    to  strike  jurors   to  minimize     damages,

                  particularly     since   Plaintiff’s    claims    against    Bostrom      have    already    been    resolved.     If

                  Defendants     receive    more   collective    strikes  than  Plaintiff,   they  will  undoubtedly      pool   them

                  together   to  peremptorily     remove    more    damages     jurors  than   Plaintiff  will  have   the  ability  to

                  remove.

                           The purpose of Rule 233 is to assure that neither side has an unfair advantage over the

                  other.  Accordingly,      the  Court    must   allocate   peremptory      strikes  in  a manner     that  does   not

                  allow   Defendants     to  “gang   up”   on  Plaintiff  and   stack  the  jury.  If each   defendant    is allowed

                  its own   set  of  independent     strikes,  or  if the  Court   gives  Defendants’      side  more   strikes   than

                  Plaintiff’s   side,  the  disparity    will  severely    prejudice    Plaintiff   and   could   possibly    lead   to

                  reversible error. In Patterson, the Texas Supreme Court held that “[t]he trial court had a duty
                  to  equalize   the  strikes  . . . so  that  no  party  retained   an   unequal    advantage.”    592   S.W.2d     at

                  Plaintiff asks the Court to do so here.

                           Given the number of Defendants, Plaintiff suggests that each “side” receive an equal

                  number of strikes (with Plaintiff having a number of strikes equal to the collective number of

                  strikes  given   to  Defendants)     and   that  Defendants     be  allowed    to confer    with  each   other  and

                  coordinate their six strikes as they see fit. In this way, strikes will be equalized between the

                  sides  and   Defendants     will  not  risk  duplicating    their  strikes.  This   solution   accomplishes      the

                  goals of Rule 233 and will be fair to all parties.

                                                                      ONCLUSION

                           For   these  reasons,   Plaintiff   asks  the  Court    to equalize    peremptory     strikes   by  giving

                  Plaintiff   and    Defendants      an   equal    numbersix      for   Plaintiff   and   s    ix  for   Defendants

                  collectivelyand      to  allow   Defendants      to  exercise    their  six  strikes   as  they   see   fit after

                  conferring with each other.

                                                                        Respectfully Submitted,

                                                                        ARNOLD & ITKIN LLP

                                                                        /s/ Kurt Arnold
                                                                        Kurt Arnold
                                                                        SBN: 24036150
                                                                        karnold@arnolditkin.com
                                                                        Caj Boatright
                                                                        SBN: 24036237
                                                                        cboatright@arnolditkin.com
                                                                        Roland Christensen
                                                                        SBN: 24101222
                                                                        rchristensen@arnolditkin.com
                                                                        Joseph McGowin
                                                                        SBN: 24117268
                                                                        jmcgowin@arnolditkin.com
                                                                        Claire Traver
                                                                        SNB: 24115871
                                                                        ctraver@arnolditkin.com
                                                                        6009 Memorial Drive
                                                                        Houston, Texas 77007
                                                                        Tel: 713.222.3800
                                                                        Fax: 713.222.3850
                                                                        kbateam@arnolditin.com
                                                                          service@arnolditkin.com

                                                                        ATTORNEYS FOR PLAINTIFF
                                                        CERTIFICATE OF SERVICE

                           I hereby    certify   that  a true  and   correct   copy    of  the  foregoing    has   been   sent  to  all
                  counsel of record in accordance with the Texas of Civil Procedure on this                            day of April


                                                                        /s/ Caj Boatright
                                                                        Caj Boatright